(b) when Part II is in force, the Secretary appointed under subsection 77.24(1);

“Commissioner”

“Commissioner”[Repealed, 2005, c. 38, s. 132]

“Committee”

« Comité »

“Committee” means the Committee on Subsidies and Countervailing Measures established by Article 24 of the Subsidies Agreement;

“country”

« pays »

“country”, unless the context requires otherwise, includes

(a) an external or dependent territory of a country and any other territory prescribed by regulation made by the Governor in Council, and

(b) except for the purposes of proceedings respecting the dumping of goods, a customs union;

“country of export”

« pays d’exportation »

“country of export” means, in the case of dumped goods, the country from which the goods were shipped directly to Canada or, if the goods have not been shipped directly to Canada, the country from which the goods would be shipped directly to Canada under normal conditions of trade and, in the case of subsidized goods, the country in which the subsidy originated;

“Deputy Minister”

“Deputy Minister”[Repealed, 1999, c. 17, s. 180]

“designated officer”

« agent désigné »

“designated officer” means any officer, or any officer within a class of officers, designated pursuant to section 59 of the Customs Act;

“domestic industry”

« branche de production nationale »

“domestic industry” means, other than for the purposes of section 31 and subject to subsection (1.1), the domestic producers as a whole of the like goods or those domestic producers whose collective production of the like goods constitutes a major proportion of the total domestic production of the like goods except that, where a domestic producer is related to an exporter or importer of dumped or subsidized goods, or is an importer of such goods, “domestic industry” may be interpreted as meaning the rest of those domestic producers;

“dumped”

« sous-évalué »

“dumped”, in relation to any goods, means that the normal value of the goods exceeds the export price thereof;

“duty”

« droits »

“duty” means any duty, including provisional duty, imposed by virtue of this Act;

“enterprise”

« entreprise »

“enterprise” includes a group of enterprises, an industry and a group of industries;

“government”, in relation to any country other than Canada, means the government of that country and includes

(a) any provincial, state, municipal or other local or regional government in that country,

(b) any person, agency or institution acting for, on behalf of, or under the authority of, or under the authority of any law passed by, the government of that country or that provincial, state, municipal or other local or regional government, and

(c) any association of sovereign states of which that country is a member;

“government of a NAFTA country”

« gouvernement d’un pays ALÉNA »

“government of a NAFTA country” means such department, agency or other body of the government of a NAFTA country as is prescribed;

“importer”

« importateur »

“importer”, in relation to any goods, means the person who is in reality the importer of the goods;

“injury”

« dommage »

“injury” means material injury to a domestic industry;

“insignificant”

« minimale »

“insignificant” means,

(a) in relation to a margin of dumping, a margin of dumping that is less than two per cent of the export price of the goods, and

(b) in relation to an amount of subsidy, an amount of subsidy that is less than one per cent of the export price of the goods;

“like goods”

« marchandises similaires »

“like goods”, in relation to any other goods, means

(a) goods that are identical in all respects to the other goods, or

(b) in the absence of any goods described in paragraph (a), goods the uses and other characteristics of which closely resemble those of the other goods;

“margin of dumping”

« marge de dumping »

“margin of dumping”, in relation to any goods, means, subject to sections 30.1, 30.2 and 30.3, the amount by which the normal value of the goods exceeds the export price of the goods;

“material injury”

“material injury”[Repealed, 1994, c. 47, s. 144]

“member”

“member”[Repealed, R.S., 1985, c. 47 (4th Supp.), s. 52]

“Minister”

« ministre »

“Minister” means the Minister of Public Safety and Emergency Preparedness;

“negligible” means, in respect of the volume of dumped goods of a country,

(a) less than three per cent of the total volume of goods that are released into Canada from all countries and that are of the same description as the dumped goods,

except that

(b) where the total volume of dumped goods of three or more countries, each of whose exports of dumped goods into Canada is less than three per cent of the total volume of goods referred to in paragraph (a), is more than seven per cent of the total volume of goods referred to in paragraph (a),

the volume of dumped goods of any of those countries is not negligible;

“non-actionable subsidy”

« subventions ne donnant pas lieu à une action »

“non-actionable subsidy” means

(a) a subsidy that is not specific as determined pursuant to subsections (7.1) to (7.4),

(b) a subsidy for

(i) industrial research assistance,

(ii) pre-competitive development assistance,

(iii) assistance to disadvantaged regions,

(iv) assistance for the adaptation of existing facilities to new environmental standards, or

(v) assistance for research activities conducted by institutions of higher education and independent research establishments,

that meets the prescribed criteria, or

(c) subject to subsection (1.4), a domestic support measure for an agricultural product listed in Annex 1 of the Agreement on Agriculture, being part of Annex 1A to the WTO Agreement, that conforms to the provisions of Annex 2 to the Agreement on Agriculture;

(a) means an order or finding made by the Tribunal under section 43 or 44 that has not been rescinded under any of sections 76.01 to 76.1 and subsection 91(3) but, if the order or finding has been amended one or more times under any of sections 76.01 to 76.1, as last so amended, and

(b) includes, for the purposes of sections 3 to 6 and 76 to 76.1, an order or finding made by the Tribunal under subsection 91(3) that has not been rescinded under any of sections 76.01 to 76.1 but, if the order or finding has been amended one or more times under any of sections 76.01 to 76.1, as last so amended;

“person”

« personne »

“person” includes a partnership and an association;

“prescribed”

Version anglaise seulement

“prescribed”, in relation to a form, means prescribed by the President and, in any other case, means prescribed by regulation;

“prohibited subsidy” means a subsidy that is prohibited by virtue of being

(a) an export subsidy, or

(b) a subsidy or portion of a subsidy that is contingent, in whole or in part, on the use of goods that are produced or that originate in the country of export;

“properly documented”

« dossier complet »

“properly documented”, in relation to a complaint respecting the dumping or subsidizing of goods, means that

(a) the complaint

(i) alleges that the goods have been or are being dumped or subsidized, specifies the goods and alleges that the dumping or subsidizing has caused injury or retardation or is threatening to cause injury,

(ii) states in reasonable detail the facts on which the allegations referred to in subparagraph (i) are based, and

(iii) makes such other representations as the complainant deems relevant to the complaint, and

(b) the complainant provides

(i) the information that is available to the complainant to support the facts referred to in subparagraph (a)(ii),

(ii) such information as is prescribed, and

(iii) such other information as the President may reasonably require;

“provisional duty”

« droits provisoires »

“provisional duty” means duty imposed under section 8;

“regular member”

“regular member”[Repealed, R.S., 1985, c. 47 (4th Supp.), s. 52]

“release”

« dédouanement »

“release” means

(a) in respect of goods, to authorize the removal of the goods from a customs office, sufferance warehouse, bonded warehouse or duty free shop for use in Canada, and

(b) in respect of goods to which paragraph 32(2)(b) of the Customs Act applies, to receive the goods at the place of business of the importer, owner or consignee;

“retardation”

« retard »

“retardation” means material retardation of the establishment of a domestic industry;

“sale”

« vente »

“sale” includes leasing and renting, an agreement to sell, lease or rent and an irrevocable tender;

“Secretary”

« secrétaire »

“Secretary” means the Secretary of the Tribunal;

“Subsidies Agreement”

« Accord sur les subventions »

“Subsidies Agreement” means the Agreement on Subsidies and Countervailing Measures, being part of Annex 1A to the WTO Agreement;

(a) goods in respect of the production, manufacture, growth, processing, purchase, distribution, transportation, sale, export or import of which a subsidy has been or will be paid, granted, authorized or otherwise provided, directly or indirectly, by the government of a country other than Canada, and

(b) goods that are disposed of by the government of a country other than Canada for less than fair market value,

and includes any goods in which, or in the production, manufacture, growth, processing or the like of which, goods described in paragraph (a) or (b) are incorporated, consumed, used or otherwise employed;

“subsidy”

« subvention »

“subsidy” means

(a) a financial contribution by a government of a country other than Canada in any of the circumstances outlined in subsection (1.6) that confers a benefit to persons engaged in the production, manufacture, growth, processing, purchase, distribution, transportation, sale, export or import of goods, but does not include the amount of any duty or internal tax imposed by the government of the country of origin or country of export on

(i) goods that, because of their exportation from the country of export or country of origin, have been exempted or have been or will be relieved by means of remission, refund or drawback,

(ii) energy, fuel, oil and catalysts that are used or consumed in the production of exported goods and that have been exempted or have been or will be relieved by means of remission, refund or drawback, or

(iii) goods incorporated into exported goods and that have been exempted or have been or will be relieved by means of remission, refund or drawback, or

(b) any form of income or price support within the meaning of Article XVI of the General Agreement on Tariffs and Trade, 1994, being part of Annex 1A to the WTO Agreement, that confers a benefit;

“undertaking” or “undertakings” means an undertaking or undertakings with respect to goods that are the subject of a dumping or subsidizing investigation under this Act given in writing to the President in any of the following circumstances:

(a) in the case of dumped goods, an undertaking given by an exporter who accounts for, or undertakings given individually by exporters who account for, all or substantially all the exports to Canada of the dumped goods where the exporter or each exporter, as the case may be, undertakes in his undertaking

(i) to revise, in the manner specified in his undertaking, the price at which he sells the goods to importers in Canada, or

(ii) to cease dumping the goods in Canada, and

(b) in the case of subsidized goods,

(i) an undertaking given by an exporter who accounts for, or undertakings given individually by exporters who account for, all or substantially all the exports to Canada of the subsidized goods, where the exporter or each exporter, as the case may be,

(A) has the consent of the government of the country of export of the goods to give the undertaking, and

(B) undertakes to revise, in the manner specified in his undertaking, the price at which he sells the goods to importers in Canada, or

(ii) an undertaking given by the government of a country that accounts for, or undertakings given by the governments of countries that account for, all or substantially all the exports to Canada of the subsidized goods where the country or each country, as the case may be, undertakes in its undertaking

(A) to eliminate the subsidy on goods exported to Canada from that country,

(B) to limit the amount of subsidy on goods exported to Canada from that country,

(C) to limit the quantity of the goods to be exported to Canada from that country, or

(D) otherwise to eliminate the effect of the subsidizing on the production in Canada of like goods,

in the manner specified in its undertaking;

“United States government”

« gouvernement des États-Unis »

“United States government” means such department, agency or other body of the federal government of the United States as is prescribed;

Marginal note:When domestic industry based on regional markets

(1.1) In exceptional circumstances, the territory of Canada may, for the production of any goods, be divided into two or more regional markets and the domestic producers of like goods in any of those markets may be considered to be a separate domestic industry where

(a) the producers in the market sell all or almost all of their production of like goods in the market; and

(b) the demand in the market is not to any substantial degree supplied by producers of like goods located elsewhere in Canada.

Marginal note:Producers related to exporters or importers

(1.2) For the purposes of the definition “domestic industry” in subsection (1), a domestic producer is related to an exporter or an importer of dumped or subsidized goods where

(a) the producer either directly or indirectly controls, or is controlled by, the exporter or importer,

(b) the producer and the exporter or the importer, as the case may be, are directly or indirectly controlled by a third person, or

(c) the producer and the exporter or the importer, as the case may be, directly or indirectly control a third person,

and there are grounds to believe that the producer behaves differently towards the exporter or importer than does a non-related producer.

Marginal note:Where there is deemed to be control

(1.3) For the purposes of subsection (1.2), a person is deemed to control another person where the first person is legally or operationally in a position to exercise restraint or direction over the other person.

Marginal note:When domestic support measure ceases to be a non-actionable subsidy

(1.4) A domestic support measure referred to in paragraph (c) of the definition “non-actionable subsidy” in subsection (1) ceases to be a non-actionable subsidy on the day on which the implementation period in respect of the Agreement on Agriculture referred to in that paragraph, as defined in Article 1 of that Agreement for the purposes of Article 13 of that Agreement, expires.

Marginal note:Threat of injury

(1.5) For the purposes of this Act, the dumping or subsidizing of goods shall not be found to be threatening to cause injury or to cause a threat of injury unless the circumstances in which the dumping or subsidizing of goods would cause injury are clearly foreseen and imminent.

Marginal note:Financial contribution

(1.6) For the purposes of paragraph (a) of the definition “subsidy” in subsection (1), there is a financial contribution by a government of a country other than Canada where

(a) practices of the government involve the direct transfer of funds or liabilities or the contingent transfer of funds or liabilities;

(b) amounts that would otherwise be owing and due to the government are exempted or deducted or amounts that are owing and due to the government are forgiven or not collected;

(c) the government provides goods or services, other than general governmental infrastructure, or purchases goods; or

(d) the government permits or directs a non-governmental body to do any thing referred to in any of paragraphs (a) to (c) where the right or obligation to do the thing is normally vested in the government and the manner in which the non-governmental body does the thing does not differ in a meaningful way from the manner in which the government would do it.

Definition of “associated persons”

(2) For the purposes of this Act, the following persons are “associated persons” or persons associated with each other, namely,

(a) persons related to each other; or

(b) persons not related to each other, but not dealing with each other at arm’s length.

Marginal note:Persons related to each other

(3) For the purposes of subsection (2), persons are related to each other if

(a) they are individuals connected by blood relationship, marriage, common-law partnership or adoption within the meaning of subsection 251(6) of the Income Tax Act;

(b) one is an officer or director of the other;

(c) each such person is an officer or director of the same two corporations, associations, partnerships or other organizations;

(d) they are partners;

(e) one is the employer of the other;

(f) they directly or indirectly control or are controlled by the same person;

(g) one directly or indirectly controls or is controlled by the other;

(h) any other person directly or indirectly owns, holds or controls five per cent or more of the outstanding voting stock or shares of each such person; or

(i) one directly or indirectly owns, holds or controls five per cent or more of the outstanding voting stock or shares of the other.

Marginal note:Persons dealing at arm’s length

(4) For the purposes of paragraph (2)(b), it is a question of fact whether persons not related to each other were at a particular time dealing with each other at arm’s length.

(5) [Repealed, 1994, c. 47, s. 144]

Marginal note:Agreement affecting countervailing duty

(6) Notwithstanding the definition “amount of subsidy”, where, in relation to any subsidized goods, the manufacturer, producer, vendor or exporter thereof or the government of a country other than Canada, undertakes, directly or indirectly in any manner whatever, to indemnify, pay on behalf of or reimburse the importer or purchaser in Canada of the goods for all or any part of the countervailing duty that may be levied on the goods, the amount of subsidy on the goods is, for the purposes of this Act, the amount of subsidy determined and adjusted in such manner as is provided under that definition plus the amount of the indemnity, payment or reimbursement.

Marginal note:Interpretation of provisions that apply to both dumped and subsidized goods

(7) Where, by its terms, any provision of this Act applies to both dumped and subsidized goods, the application of the provision

(a) to subsidized goods shall not be taken into account in an investigation, inquiry or other proceeding or matter under this Act relating to the dumping of goods; and

(b) to dumped goods shall not be taken into account in an investigation, inquiry or other proceeding or matter under this Act relating to the subsidizing of goods.

Marginal note:Criteria and conditions for non-specificity

(7.1) A subsidy is not specific where the criteria or conditions governing eligibility for, and the amount of, the subsidy are

(a) objective;

(b) set out in a legislative, regulatory or administrative instrument or other public document; and

(c) applied in a manner that does not favour or is not limited to a particular enterprise.

Marginal note:When subsidy is specific

(7.2) A subsidy is specific where it is

(a) limited, pursuant to an instrument or document referred to in paragraph (7.1)(b), to a particular enterprise within the jurisdiction of the authority that is granting the subsidy; or

(b) a prohibited subsidy.

Marginal note:Determination of specificity by President

(7.3) Notwithstanding that a subsidy is not limited in the manner referred to in paragraph (7.2)(a), the President may determine the subsidy to be specific having regard as to whether

(a) there is exclusive use of the subsidy by a limited number of enterprises;

(b) there is predominant use of the subsidy by a particular enterprise;

(c) disproportionately large amounts of the subsidy are granted to a limited number of enterprises; and

(d) the manner in which discretion is exercised by the granting authority indicates that the subsidy is not generally available.

Marginal note:Additional considerations

(7.4) Where any of the factors listed in paragraphs (7.3)(a) to (d) is present, the President shall consider whether the presence is due to

(a) the extent of diversification of economic activities within the jurisdiction of the granting authority, or

(b) the length of time that the subsidy program has been in operation,

and where the President is of the opinion that the presence is due to one of the reasons set out in paragraph (a) or (b), the President may find the subsidy not to be specific notwithstanding that, were it not for that opinion, the President would have found the subsidy to be specific.

Marginal note:Law relating to the customs

(8) For greater certainty, this Act shall be considered, for the purposes of the Customs Act, to be a law relating to the customs.

Marginal note:Powers, duties and functions of President

(9) Any power, duty or function of the President under this Act may be exercised or performed by any person authorized by the President to do so and, if so exercised or performed, is deemed to have been exercised or performed by the President.

PART ISPECIAL IMPORT MEASURES

Liability for Anti-dumping, Countervailing and Provisional Duties

Anti-dumping and Countervailing Duty

Marginal note:Anti-dumping and countervailing duty

3. (1) Subject to section 7.1, there shall be levied, collected and paid on all dumped and subsidized goods imported into Canada in respect of which the Tribunal has made an order or finding, before the release of the goods, that the dumping or subsidizing of goods of the same description has caused injury or retardation, is threatening to cause injury or would have caused injury or retardation except for the fact that provisional duty was applied in respect of the goods, a duty as follows:

(a) in the case of dumped goods, an anti-dumping duty in an amount equal to the margin of dumping of the imported goods; and

(b) in the case of subsidized goods, a countervailing duty in an amount equal to the amount of subsidy on the imported goods.

Marginal note:Duty where undertaking violated

(2) If the Tribunal has made an order or finding referred to in subsection (1) in respect of goods that are subject to an undertaking referred to in section 7.1 and the undertaking is subsequently terminated under paragraph 52(1)(d), there shall be levied, collected and paid a duty as provided under paragraphs (1)(a) and (b) on all of those goods that were

(a) if paragraph 52(1)(a) applies, released on or after the later of

(i) the day on which the undertaking was violated, and

(ii) the ninetieth day before the day on which notice of termination was given under paragraph 52(1)(e); and

(b) if paragraph 52(1)(b) or (c) applies, released on or after the day on which notice of termination was given under paragraph 52(1)(e).

R.S., 1985, c. S-15, s. 3;

1994, c. 47, ss. 145, 185(E);

1999, c. 12, s. 2.

Marginal note:Other cases

4. (1) Subject to section 7.1, there shall be levied, collected and paid a duty as set out in subsections (3) and (4) on all dumped and subsidized goods imported into Canada

(a) in respect of which the Tribunal has made an order or finding, after the release of the goods, that the dumping or subsidizing of goods of the same description

(i) has caused injury, or

(ii) would have caused injury except for the fact that provisional duty was applied in respect of the goods; and

(b) that were released during the period beginning on the day on which the preliminary determination is made with respect to the goods and ending on the day on which the Tribunal makes the order or finding.

Marginal note:Where undertaking subsequently terminated

(2) There shall be levied, collected and paid a duty as set out in subsections (3) and (4) on all dumped and subsidized goods imported into Canada

(a) that are the subject of an undertaking accepted by the President under subsection 49(1) that was terminated under paragraph 52(1)(d);

(b) in respect of which the Tribunal has made an order or finding, after the release of the goods, that the dumping or subsidizing of goods of the same description

(i) has caused injury, or

(ii) would have caused injury except for the fact that provisional duty was applied in respect of the goods; and

(c) that were released, where paragraph 52(1)(a), (b) or (c) applies, during the period beginning on the day on which the preliminary determination was made and ending on the day the undertaking was accepted, and

(i) where paragraph 52(1)(a) applies, during the period beginning on the later of

(A) the day on which the undertaking is violated, and

(B) the ninetieth day before the day on which notice of the termination was given under paragraph 52(1)(e),

and ending on the day on which the Tribunal makes the order or finding referred to in paragraph (b), or

(ii) where paragraph 52(1)(b) or (c) applies, beginning on the day on which notice of termination was given under paragraph 52(1)(e) and ending on the day on which the Tribunal makes the order or finding referred to in paragraph (b).

Marginal note:Amount of duty

(3) The duty applicable to goods under subsection (1) or (2) is

(a) in the case of dumped goods, an anti-dumping duty in an amount that is equal to the margin of dumping of the goods; and

(b) in the case of subsidized goods, a countervailing duty in an amount that is equal to the amount of subsidy on the goods.

Marginal note:Limitation

(4) The duty referred to in subsection (3) shall not exceed the duty, if any, paid or payable in respect of the goods under section 8.

Marginal note:Anti-dumping duty

5. There shall be levied, collected and paid on all dumped goods imported into Canada

(a) in respect of which the Tribunal has made an order or finding, after the release of the goods, that

(i) either

(A) there has occurred a considerable importation of like goods that were dumped, which dumping has caused injury or would have caused injury except for the application of anti-dumping measures, or

(B) the importer of the goods was or should have been aware that the exporter was practising dumping and that the dumping would cause injury, and

(ii) injury has been caused by reason of the fact that the imported goods

(A) constitute a massive importation into Canada, or

(B) form part of a series of importations into Canada, which importations in the aggregate are massive and have occurred within a relatively short period of time,

and in order to prevent the recurrence of the injury, it appears necessary to the Tribunal that duty be assessed on the imported goods, and

(b) that were released during the period of ninety days preceding the day on which the President made a preliminary determination of dumping in respect of the goods or goods of that description, other than goods that were released before the initiation of an investigation referred to in section 31,

an anti-dumping duty in an amount equal to the margin of dumping of the imported goods.

Marginal note:Countervailing duty

6. Where any subsidy on subsidized goods is a prohibited subsidy, there shall be levied, collected and paid on all such subsidized goods imported into Canada

(a) in respect of which the Tribunal has made an order or finding, after the release of the goods, that

(i) injury has been caused by reason of the fact that the imported goods

(A) constitute a massive importation into Canada, or

(B) form part of a series of importations into Canada, which importations in the aggregate are massive and have occurred within a relatively short period of time, and

(ii) a countervailing duty should be imposed on the subsidized goods in order to prevent the recurrence of such injury,

(b) that were released during the period of ninety days preceding the day on which the President made a preliminary determination of subsidizing in respect of the goods or goods of that description, other than goods that were released before the initiation of an investigation referred to in section 31, and

(c) in respect of which the President has made a specification pursuant to clause 41(1)(a)(iv)(C),

a countervailing duty in an amount equal to such of the amount of subsidy on the imported goods as is a prohibited subsidy.

Marginal note:Governor in Council may impose countervailing duty by order

7. (1) The Governor in Council may order an investigation to determine the amount of subsidy on any subsidized goods that are the product of a country specified in the order, and where

(a) the President has, by means of the investigation, determined that amount, and

(b) the Committee has authorized Canada to impose countervailing duties on the subsidized goods,

the Governor in Council may, on the recommendation of the Minister of Finance, by order impose a countervailing duty on any subsidized goods that are the product of that country and that are of the same description as the goods in respect of which the President has determined the amount of subsidy and, where a countervailing duty is so imposed, there shall, subject to subsection (2), be levied, collected and paid on all such subsidized goods imported into Canada a countervailing duty in the amount specified in the order in respect of the goods.

Marginal note:Duty not to exceed amount of subsidy

(2) Where subsidized goods on which a countervailing duty has been imposed pursuant to subsection (1) are imported into Canada and the amount of subsidy on the imported goods is less than the amount of the duty so imposed, there shall be levied, collected and paid on the goods pursuant to this section a countervailing duty only in the amount of subsidy on the goods.

Marginal note:Non-application

7.1 Sections 3 and 4 do not apply in respect of goods in respect of which an undertaking has been accepted and not terminated.

1994, c. 47, s. 148.

Provisional Duty

Marginal note:Imposition of provisional duty

8. (1) Where the President makes a preliminary determination of dumping or subsidizing in an investigation under this Act and considers that the imposition of provisional duty is necessary to prevent injury, retardation or threat of injury, the importer in Canada of dumped or subsidized goods that are of the same description as any goods to which the preliminary determination applies and that are released during the period commencing on the day the preliminary determination is made and ending on the earlier of

(a) the day on which the President causes the investigation to be terminated pursuant to subsection 41(1) with respect to goods of that description, and

(b) the day on which the Tribunal makes an order or finding with respect to goods of that description,

shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,

(c) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods, or

(d) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.

Marginal note:Imposition of provisional duties on referral back to Tribunal

(1.1) If an order or finding of the Tribunal under subsection 43(1), 76.02(4) respecting a review under subsection 76.02(1), or 91(3), other than an order or finding described in any of sections 3 to 6, is referred back to the Tribunal under subsection 77.015(3) or (4) or 77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the importer of dumped or subsidized goods that are of the same description as any goods to which the order or finding applies and that are released during the period beginning on the day on which the preliminary determination is made under subsection 38(1) and ending on the day on which the Tribunal makes an order or finding, on the referral back, with respect to goods of that description, shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,

(a) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods; or

(b) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.

Marginal note:Imposition of provisional duties on referral back from Federal Court of Appeal

(1.2) If an order or finding of the Tribunal under subsection 43(1), 76.02(4) respecting a review under subsection 76.02(1), or 91(3), other than an order or finding described in any of sections 3 to 6, is referred back to the Tribunal by the Federal Court of Appeal, the importer of dumped or subsidized goods that are of the same description as any goods to which the order or finding applies and that are released during the period beginning on the day on which the preliminary determination is made under subsection 38(1) and ending on the day on which the Tribunal makes an order or finding, on the referral back, with respect to goods of that description, shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,

(a) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods; or

(b) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.

Marginal note:Return of provisional duty

(2) Any provisional duty paid or security posted under subsection (1), (1.1) or (1.2) by or on behalf of an importer in respect of the importation of dumped or subsidized goods of any description shall

(a) be returned to the importer forthwith after

(i) the President causes the investigation to be terminated pursuant to subsection 35.1(1) or 41(1) with respect to goods of that description,

(ii) all proceedings respecting the dumping or subsidizing of goods of that description are terminated as described in section 47, or

(iii) the Tribunal makes an order or finding with respect to goods of that description if the order or finding is only to the effect that the dumping or subsidizing of those goods is threatening to cause injury; and

(b) except to the extent of any duty payable in respect of the imported goods, be returned to the importer forthwith after a determination is made in respect of the imported goods by a designated officer pursuant to such of paragraphs 55(1)(c) to (e) as are applicable.

(3) and (4) [Repealed, 2001, c. 25, s. 92]

Marginal note:Suspension of collection

(5) Where the President accepts an undertaking with respect to dumped or subsidized goods, the collection of provisional duties on any dumped or subsidized goods, as the case may be, that are of the same description as any goods to which the preliminary determination applies is suspended for the period during which the undertaking is in force.

Marginal note:Resumption of collection

(6) If the President terminates an undertaking under subsection 51(1) or 52(1) with respect to dumped or subsidized goods, the collection of provisional duties on those goods is resumed and the importer of dumped or subsidized goods that are of the same description as any goods to which the preliminary determination under subsection 38(1) applied and that are released during the period beginning on the day on which the undertaking was terminated and ending on the earlier of

(a) the day on which the President causes the investigation to be terminated pursuant to subsection 41(1) with respect to goods of that description, and

(b) the day on which the Tribunal makes an order or finding with respect to goods of that description,

shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,

(c) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods, or

(d) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.

Payment of Duty During Court Proceedings and Proceedings under Part I.1 or II

Marginal note:Duty ceases where order or finding set aside by court

9. (1) Where proceedings are commenced by an application for judicial review under the Federal Courts Act, or an application under section 96.1 of this Act, to review and set aside an order or finding of the Tribunal pursuant to which duty is leviable, collectable and payable (in this section referred to as “payable”) under this Act on goods imported into Canada that are of the same description as any goods to which the order or finding applies, duty continues, notwithstanding any order or decision that may be made or given in the course of the proceedings, to be so payable pursuant to the order or finding on imported goods of that description during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the order or finding being set aside or being set aside in relation to particular goods, in which case

(a) duty ceases, on the final disposition of the proceedings, to be so payable on imported goods of that description or the same description as those particular goods, as the case may be; and

(b) for greater certainty, the order or finding shall, for the purposes of this Act, be deemed never to have been made by the Tribunal in respect of goods described in paragraph (a).

Definition of “proceedings”

(2) In subsection (1), “proceedings”, in relation to an application made to the Federal Court of Appeal, includes proceedings on any appeal from any decision of that Court on the application.

Marginal note:Duty ceases where order or finding rescinded pursuant to review

9.01 (1) Where a review is requested under Part I.1 of an order or finding of the Tribunal pursuant to which duty is leviable, collectable and payable (in this section referred to as “payable”) under this Act on goods of a NAFTA country imported into Canada that are of the same description as any goods to which the order or finding applies, duty continues, notwithstanding any order or decision that may be made or given in the course of proceedings under that Part, to be so payable pursuant to the order or finding on imported goods of that description during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the order or finding being rescinded or being rescinded in relation to particular goods, in which case

(a) duty ceases, on the order or finding being so rescinded, to be so payable on imported goods of that description or the same description as those particular goods, as the case may be; and

(b) for greater certainty, the order or finding shall, for the purposes of this Act, be deemed never to have been made by the Tribunal in respect of goods described in paragraph (a).

Marginal note:Suspension of s. 9.1

(2) The operation of section 9.1 is suspended during the period in which subsection (1) is in force.

1993, c. 44, s. 204.

Marginal note:Duty ceases where order or finding rescinded pursuant to review

9.1 Where a review is requested under Part II of an order or finding of the Tribunal pursuant to which duty is leviable, collectable and payable (in this section referred to as “payable”) under this Act on goods of the United States imported into Canada that are of the same description as any goods to which the order or finding applies, duty continues, notwithstanding any order or decision that may be made or given in the course of proceedings under that Part, to be so payable pursuant to the order or finding on imported goods of that description during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the order or finding being rescinded or being rescinded in relation to particular goods, in which case

(a) duty ceases, on the order or finding being so rescinded, to be so payable on imported goods of that description or the same description as those particular goods, as the case may be; and

(b) for greater certainty, the order or finding shall, for the purposes of this Act, be deemed never to have been made by the Tribunal in respect of goods described in paragraph (a).

1988, c. 65, s. 28.

Marginal note:Duty ceases where final determination set aside by court

9.2 (1) Where duty is leviable, collectable and payable (in this section referred to as “payable”) under this Act pursuant to an order or finding of the Tribunal on goods imported into Canada and proceedings are commenced in the Federal Court of Appeal by an application under section 96.1 to review and set aside the final determination of the President under paragraph 41(1)(a) on which the order or finding is based, duty continues, notwithstanding any order or decision that may be made or given in the course of the proceedings, to be so payable pursuant to the order or finding on imported goods of the same description as those goods during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the final determination being set aside or being set aside in relation to particular goods, or the President recommencing the investigation and terminating it under paragraph 41(1)(b), in which case

(a) duty ceases, on the final determination being so set aside or the investigation being so terminated, to be so payable on imported goods of that description or the same description as those particular goods, as the case may be; and

(b) for greater certainty, the order or finding shall, for the purposes of this Act, be deemed never to have been made by the Tribunal in respect of goods described in paragraph (a).

Definition of “proceedings”

(2) In subsection (1), “proceedings”, in relation to an application made to the Federal Court of Appeal, includes proceedings on any appeal from any decision of that Court on the application.

9.21 (1) Where duty is leviable, collectable and payable (in this section referred to as “payable”) under this Act pursuant to an order or finding of the Tribunal on goods of a NAFTA country imported into Canada and a review is requested under Part I.1 of the final determination of the President under paragraph 41(1)(a) on which the order or finding is based, duty continues, notwithstanding any order or decision that may be made or given in the course of proceedings under that Part, to be so payable pursuant to the order or finding on imported goods of the same description as those goods during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the President recommencing the investigation and terminating it under paragraph 41(1)(b), in which case

(a) duty ceases, on the investigation being so terminated, to be so payable on imported goods of that description; and

(b) for greater certainty, the order or finding shall, for the purposes of this Act, be deemed never to have been made by the Tribunal in respect of imported goods of that description.

Marginal note:Suspension of s. 9.3

(2) The operation of section 9.3 is suspended during the period in which subsection (1) is in force.

9.3 Where duty is leviable, collectable and payable (in this section referred to as “payable”) under this Act pursuant to an order or finding of the Tribunal on goods of the United States imported into Canada and a review is requested under Part II of the final determination of the President under paragraph 41(1)(a) on which the order or finding is based, duty continues, notwithstanding any order or decision that may be made or given in the course of proceedings under that Part, to be so payable pursuant to the order or finding on imported goods of the same description as those goods during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the President recommencing the investigation and terminating it under paragraph 41(1)(b), in which case

(a) duty ceases, on the investigation being so terminated, to be so payable on imported goods of that description; and

(b) for greater certainty, the order or finding shall, for the purposes of this Act, be deemed never to have been made by the Tribunal in respect of imported goods of that description.

Marginal note:Duty reimposed on referral back

9.4 (1) If an order of the Tribunal under subsection 76.01(5) or paragraph 76.03(12)(a) rescinding an order or finding described in any of sections 3 to 6 is referred back to the Tribunal under subsection 77.015(3) or (4) or 77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the importer of dumped or subsidized goods that are of the same description as any goods to which the rescinded order or finding applied and that are released on or after the day on which the order of the panel referring the rescinding order or finding back is made, shall pay or cause to be paid duty on the imported goods as if the rescinded order or finding had not been rescinded.

Marginal note:Cessation of duty

(2) Duty that is payable under subsection (1) continues to be so payable during the course of the proceedings of the Tribunal on the referral back and thereafter, unless the order or finding of the Tribunal on the referral back is

(a) to confirm the rescinding order or finding, in which case

(i) the duty ceases, on the day on which the order or finding of the Tribunal on the referral back is made, to be so payable on imported goods, and

(ii) the duty paid under subsection (1) shall be returned to the importer forthwith after that day; or

(b) to rescind the rescinding order or finding and make a new or other order or finding with respect to the goods to which the rescinded order or finding applied, in which case the duty paid under subsection (1) shall be returned to the importer forthwith after the day on which the order or finding of the Tribunal on the referral back is made, except to the extent of any duty payable by the importer as a consequence of the new or other order or finding.

Marginal note:Where Tribunal makes new order or finding

(3) Where the Tribunal rescinds a rescinding order or finding and makes a new or other order or finding as described in paragraph (2)(b), the new or other order or finding shall be deemed, for the purposes of this Act, to have been made on the day on which the order or finding so rescinded was made.

1988, c. 65, s. 28;

1993, c. 44, s. 206;

1999, c. 12, s. 4.

General Rules Relating to Payment of Duty

10. Where both an anti-dumping duty and a countervailing duty are required by this Act to be levied, collected and paid on any goods imported into Canada and all or any portion of the margin of dumping of the goods is, in the opinion of the President, attributable to an export subsidy in respect of which a countervailing duty is required by any of sections 3, 4, 6 and 7 to be levied, collected and paid, the anti-dumping duty is, notwithstanding sections 3 to 5, leviable, collectable and payable under this Act in respect of the goods only as follows:

(a) where the whole of the margin of dumping of the goods is, in the opinion of the President, attributable to the export subsidy, no anti-dumping duty is leviable, collectable or payable on the imported goods; and

(b) where a portion only of the margin of dumping of the imported goods is, in the opinion of the President, attributable to the export subsidy, an anti-dumping duty is leviable, collectable and payable on the imported goods only in an amount equal to that portion of the margin of dumping of the goods that is not, in the opinion of the President, attributable to the export subsidy.

Marginal note:Duty payable by importer in Canada

11. The importer in Canada of any goods imported into Canada in respect of which duty, other than provisional duty, is payable shall, notwithstanding any security posted pursuant to section 8 or 13.2, pay or cause to be paid all such duties on the goods.

R.S., 1985, c. S-15, s. 11;

R.S., 1985, c. 1 (2nd Supp.), s. 199;

1994, c. 47, s. 150;

1999, c. 17, s. 183;

2001, c. 25, s. 93.

Marginal note:Return of duty where order or finding set aside or rescinded

12. (1) Where, pursuant to an application for judicial review under the Federal Courts Act or section 96.1 of this Act or a review under Part I.1 or II of this Act, an order or finding described in any of sections 3 to 6 is set aside or rescinded or is set aside or rescinded in relation to particular goods, and where all proceedings under this Act respecting the dumping or subsidizing of all or any of the goods to which the order or finding applies or all or any of those particular goods, as the case may be, are subsequently terminated as described in section 47, any duty paid under this Act pursuant to the order or finding by or on behalf of an importer on imported goods that are of the same description as goods with respect to which such proceedings are so terminated shall be returned to the importer forthwith after the proceedings are so terminated.

Marginal note:Return of part of duty where order or finding set aside or rescinded

(1.1) Where, pursuant to an application under the Federal Courts Act or section 96.1 of this Act or a review under Part I.1 or II of this Act, an order or finding described in any of sections 3 to 6 is set aside or rescinded or is set aside or rescinded in relation to particular goods and another such order or finding is made with respect to all or any of the goods to which the order or finding applies or all or any of those particular goods, as the case may be, any duty paid under this Act pursuant to the first-mentioned order or finding by or on behalf of an importer shall, except to the extent of any duty payable by the importer as a consequence of the other order or finding, be returned to the importer without delay after the other order or finding is made.

Marginal note:Return of duty

(2) If the President is satisfied that, because of a clerical or arithmetical error, an amount has been paid as duty in respect of goods that was not properly payable, the President shall return that amount to the importer or owner of the goods by or on whose behalf it was paid.

Marginal note:Idem

(3) Where, in relation to the importation of any goods and as a consequence of the operation of any provision of this Act, duty is paid or security posted by or on behalf of a person who, at the time the duty is paid or security posted, is considered by the President to be the importer in Canada of the goods and it is subsequently ruled by the Tribunal that the person was not the importer in Canada of the goods, the duty so paid or security so posted shall be returned to the person forthwith after the Tribunal’s ruling is made.

Marginal note:Where Tribunal makes new order or finding

13. Where, pursuant to subsection 91(3), the Tribunal rescinds an order or finding with respect to goods and makes another order or finding with respect to the goods,

(a) the other order or finding shall be deemed, for the purposes of this Act, to have been made on the date that the order or finding so rescinded was made; and

(b) any duty paid by or on behalf of any person as a consequence of the order or finding so rescinded shall, except to the extent of any duty payable by the person as a consequence of the other order or finding, be returned to the person forthwith after the other order or finding is in fact made.

Expedited Review of Normal Value, Export Price or Amount of Subsidy

Marginal note:Request for review

13.2 (1) An exporter to Canada or producer of any goods to which an order or finding referred to in section 3 applies may request that the President review the normal value, export price or amount of subsidy in relation to those goods if the exporter or producer

(a) establishes that they are not associated with any exporter who is in the same country as the goods that are subject to the order or finding and who had been given notice under subparagraph 34(1)(a)(i); and

(b) has not

(i) been given notice under subparagraph 34(1)(a)(i), paragraph 38(3)(a) or subsection 41(3) in respect of the goods, or

(ii) been requested to provide information in relation to those goods or in relation to any goods that are of the same description as those goods for the purposes of this Act.

Marginal note:Form of request

(2) A request under subsection (1) shall be made in the prescribed manner and form and shall contain the prescribed information.

Marginal note:Review

(3) Where the President receives a request under subsection (1), the President shall initiate a review, on an expedited basis, of the normal value, export price or amount of subsidy, as the case may be, and shall, on completion of the review, either confirm or amend the value, price or amount.

Marginal note:Posting of security

(4) An importer of goods that are of the same description as any goods to which a review under subsection (3) applies and that are released during the period beginning on the day the review is initiated and ending on the day on which the President completes the review shall, within the time prescribed under the Customs Act for the payment of duties, post, or cause to be posted, security in the prescribed manner and form and in an amount, or of a value, equal to the margin of dumping of, or amount of subsidy on, the goods.

Marginal note:Confirmation, etc., deemed to be a re-determination

(5) A confirmation or amendment of a normal value, export price or amount of subsidy under subsection (3) is, for the purposes of paragraph 57(b), deemed to be a re-determination of a normal value, export price or amount of subsidy, as the case may be, by a designated officer referred to in that paragraph.

Exemption from Application of Act

Marginal note:Exemption of goods from application of Act

14. (1) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations exempting any goods or class of goods from the application of this Act.

Marginal note:Exemption of goods of Chile from application of Act

(2) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations exempting any goods or class of goods of Chile from the application of this Act or any of its provisions. The exemption may be in respect of the dumping of those goods or that class.

Marginal note:Duration and conditions

(3) Regulations made under subsection (2) may specify the period during which the exemption applies and make it subject to conditions.

R.S., 1985, c. S-15, s. 14;

1997, c. 14, s. 89.

Normal Value, Export Price, Margin of Dumping and Amount of Subsidy

Normal Value

Marginal note:Determination of normal value of goods

15. Subject to sections 19 and 20, where goods are sold to an importer in Canada, the normal value of the goods is the price of like goods when they are sold by the exporter of the first mentioned goods

(a) to purchasers

(i) with whom the exporter is not associated at the time of the sale of the like goods, and

(ii) who are at the same or substantially the same trade level as the importer,

(b) in the same or substantially the same quantities as the sale of goods to the importer,

(c) in the ordinary course of trade for use in the country of export under competitive conditions,

(d) during such period of sixty days that ends in the interval commencing with the first day of the year preceding the date of the sale of the goods to the importer and ending on the fifty-ninth day after such date as is selected by the President or, where, in the opinion of the President, the nature of the trade in those goods or the fact that they are sold to the importer for future delivery requires that sales of like goods by the exporter during a period other than a period of sixty days that ends in that interval be taken into account, during such period of sixty days or longer

(i) that precedes the date of the sale of the goods to the importer, or

(ii) where the goods are sold to the importer for future delivery, that precedes the date of the sale of the goods to the importer or within the year that precedes the date of the delivery of the goods to the importer

as the President specifies for those goods or for goods of the class to which those goods belong, and

(e) at the place from which the goods were shipped directly to Canada or, if the goods have not been shipped to Canada, at the place from which the goods would be shipped directly to Canada under normal conditions of trade,

adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, in taxation and other differences relating to price comparability between the goods sold to the importer and the like goods sold by the exporter.

Marginal note:Rules applied in determining normal value

(a) if there was not, in the opinion of the President, such a number of sales of like goods made by the exporter at the place described in paragraph 15(e) as to permit a proper comparison with the sale of the goods to the importer in Canada, but sales of like goods were made by the exporter at one other place or several other places in the country of export, there shall, for the purpose of making that comparison, be included with sales of like goods made by the exporter at the place described in paragraph 15(e) sales of like goods made by the exporter at that one other place or at the nearest of the several other places to the place described in paragraph 15(e), as the case may be;

(b) if there was not, in the opinion of the President, such a number of sales of like goods made by the exporter to purchasers described in subparagraph 15(a)(i) who are at the same or substantially the same trade level as the importer in Canada as to permit a proper comparison with the sale of goods to the importer, but there was such a number of sales of like goods made to purchasers described in subparagraph 15(a)(i) who are at the trade level nearest and subsequent to that of the importer, there shall be substituted for the purchasers described in paragraph 15(a) purchasers described in subparagraph 15(a)(i) who are at the trade level nearest and subsequent to that of the importer;

(c) if by reason of the fact that

(i) the sales of like goods made by the exporter were solely or primarily for export, or

(ii) the sales of like goods made by the exporter during the period that is applicable by reason of paragraph 15(d) were solely or primarily to purchasers who at any time during that period were not purchasers described in subparagraph 15(a)(i),

there was not, in the opinion of the President, such a number of sales of like goods made by the exporter as to permit a proper comparison with the sale of the goods to the importer in Canada, but there were sales of like goods for use in the country of export by other vendors, such one or more of any of those vendors that the President may specify shall be deemed to be the exporter for the purpose of determining the normal value of the goods sold to the importer in Canada;

(d) if the quantity of goods sold to the importer in Canada is larger than the largest quantity of like goods sold by the exporter for use in the country of export, the sales of like goods shall be those sales of like goods that are in the largest quantity sold by the exporter for such use; and

(e) if the quantity of goods sold to the importer in Canada is smaller than the smallest quantity of like goods sold by the exporter for use in the country of export, the sales of like goods shall be those sales of like goods that are in the smallest quantity sold by the exporter for such use.

Marginal note:Idem

(2) In determining the normal value of any goods under section 15, there shall not be taken into account

(a) any sale of like goods for use in the country of export by a vendor to a purchaser if the vendor did not, at the same or substantially the same time, sell like goods in the ordinary course of trade to other persons in the country of export at the same trade level as, and not associated with, the purchaser; and

(b) any sale of like goods by the exporter within a period, determined by the President, of not less than six months, where

(i) the sale is made at a price that is less than the cost of the goods,

(ii) either

(A) the sale is of a volume that, or is one of a number of sales referred to in subparagraph (i) the total volume of which, is not less than twenty per cent of the total volume of like goods sold during that period, or

(B) the average selling price of like goods sold by the exporter during that period is less than the average cost of those like goods, and

(iii) the sale is made at a price per unit that is not greater than the average cost of all like goods sold during that period.

Meaning of “cost”

(3) For the purposes of paragraph (2)(b), “cost” means, in relation to goods, the cost of production of the goods and the administrative, selling and all other costs with respect to the goods.

Marginal note:Price of like goods

17. In determining the normal value of any goods under section 15, the price of like goods when sold by the exporter to purchasers during the period referred to in paragraph 15(d) in a sale or sales that comply with the terms and conditions referred to in section 15 or with those terms and conditions that apply by virtue of subsection 16(1) is, at the option of the President in any case or class of cases, except a case or class of cases to which subsection 30.2(3) applies,

(a) the weighted average of the prices at which like goods were sold by the exporter to purchasers during that period; or

(b) the price at which like goods were sold by the exporter in any sale during that period where, in the opinion of the President, the price is representative of the prices at which like goods were sold during that period.

Marginal note:Goods deemed to be like goods

18. Where goods imported into Canada and goods sold for use in the country of export are like goods except only that the goods sold for such use have applied to them a trade-mark, as defined in the Trade-marks Act, that is not applied to the goods imported into Canada, and goods like the goods imported are not sold for use in the country of export, the goods imported and the goods sold for such use shall be deemed to be like goods for the purposes of this section if, in the opinion of the President,

(a) the goods are being imported into Canada without that trade-mark applied to them in order to avoid the operation of section 15; and

(b) it is probable that there will be applied to the goods, subsequent to their importation into Canada, that trade-mark or any other mark so closely resembling that trade-mark that it is likely to be taken therefor.

19. Subject to section 20, where the normal value of any goods cannot be determined under section 15 by reason that there was not, in the opinion of the President, such a number of sales of like goods that comply with all the terms and conditions referred to in that section or that are applicable by virtue of subsection 16(1) as to permit a proper comparison with the sale of the goods to the importer, the normal value of the goods shall be determined, at the option of the President in any case or class of cases, as

(a) such price of like goods when sold by the exporter to importers in any country other than Canada during the period referred to in paragraph 15(d) as, in the opinion of the President, fairly reflects the market value of the goods at the time of the sale of the goods to the importer in Canada, adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, in taxation and other differences relating to price comparability between the goods sold to the importer in Canada and the like goods sold by the exporter to importers in the country other than Canada; or

(b) the aggregate of

(i) the cost of production of the goods,

(ii) a reasonable amount for administrative, selling and all other costs, and

Marginal note:Normal value where export monopoly

20. (1) Where goods sold to an importer in Canada are shipped directly to Canada

(a) from a prescribed country where, in the opinion of the President, domestic prices are substantially determined by the government of that country and there is sufficient reason to believe that they are not substantially the same as they would be if they were determined in a competitive market, or

(b) from any other country where, in the opinion of the President,

(i) the government of that country has a monopoly or substantial monopoly of its export trade, and

(ii) domestic prices are substantially determined by the government of that country and there is sufficient reason to believe that they are not substantially the same as they would be if they were determined in a competitive market,

the normal value of the goods is

(c) where like goods are sold by producers in any country other than Canada designated by the President for use in that country,

(i) the price of the like goods at the time of the sale of the goods to the importer in Canada, adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, in taxation and other differences relating to price comparability between the goods sold to the importer in Canada and the like goods sold by producers in the country other than Canada designated by the President for use in that country, or

(ii) the aggregate of

(A) the cost of production of the like goods,

(B) a reasonable amount for administrative, selling and all other costs, and

(C) a reasonable amount for profits,

whichever of the price or aggregate the President designates for any case or class of cases; or

(d) where, in the opinion of the President, sufficient information has not been furnished or is not available to enable the normal value of the goods to be determined as provided in paragraph (c), the price of like goods

(i) produced in any country designated by the President, other than Canada or the country from which the goods were shipped directly to Canada, and

(ii) imported into Canada and sold by the importer thereof in the condition in which they were imported to a person with whom, at the time of the sale, the importer was not associated,

such price to be adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, in taxation and other differences relating to price comparability between the goods sold to the importer and the imported like goods in relation to their sale by the importer thereof.

Marginal note:Limitation

(2) The President may not designate a country under paragraph (1)(d) if

(a) the like goods of that country are also the subject of investigation under this Act, unless the President is of the opinion that those goods are not dumped goods; or

(b) in the opinion of the President, the price of the like goods imported into Canada has been significantly influenced by a country described in paragraphs (1)(a) and (b).

Marginal note:Credit sales of like goods

21. (1) Where any sale of like goods referred to in section 17, paragraph 19(a), subparagraph 20(1)(c)(i) or paragraph 20(1)(d) was made on credit terms other than cash discounts, the price for which the like goods were sold is deemed, for the purpose of that provision, to be an amount equal to the quotient obtained when

(a) the aggregate of the present value of every payment of principal or interest, or of principal and interest, provided for by any agreement entered into with respect to the sale, determined

(i) as of the time of the sale, and

(ii) by reference to a discount rate equal to

(A) the interest rate prevailing in the country in which the goods were sold, at the time of the sale, for commercial loans available in that country in the currency in which the payments are expressed in the agreement and on terms, other than the interest rate, comparable to the credit terms on which the sale of the like goods was made, or

(B) where it is not possible to ascertain the interest rate referred to in clause (A) or there is no such interest rate, the interest rate selected as provided for by regulations made pursuant to paragraph 97(i),

is divided by

(b) the number or quantity of the like goods sold,

so as to arrive at a unit price for the like goods sold.

Marginal note:Adjustment of unit price

(1.1) The unit price arrived at under subsection (1) shall be adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, taxation and other matters that relate to price comparability between the goods sold to the importer in Canada and the like goods sold.

Marginal note:Where agreement relates to several goods

(2) For the purpose of paragraph (1)(a), where an agreement with respect to the sale of like goods also relates to the sale of other goods, only such portion of the present value of any payment of principal or interest, or of principal and interest, provided for by the agreement as is reasonably attributable to the like goods shall be included in determining the aggregate referred to in that paragraph.

R.S., 1985, c. S-15, s. 21;

1999, c. 12, s. 8.

Marginal note:Purchasers to be regarded as one

22. For the purpose of section 15, where two or more purchasers are persons associated with each other during the period that, by reason of the operation of paragraph 15(d), is relevant for the purpose of that section, those purchasers shall be regarded as a single purchaser.

1984, c. 25, s. 22.

Marginal note:Where exporter provides benefit on resale in country of export

23. Where, by reason of any provision of section 17, 19 or 20, the normal value of goods sold to an importer in Canada is required to be determined by reference to the price of like goods sold by the exporter of the first mentioned goods and the exporter agrees with persons who purchase the like goods from him in the country of export of the goods sold to the importer in Canada to provide, directly or indirectly, to persons who purchase the like goods in the country of export

(a) on resale from the persons with whom such an agreement is made, or

(b) from any person on any subsequent resale,

any benefit by way of rebate, service, other goods or otherwise, the normal value for the purposes of this Act of the goods sold to the importer in Canada is the normal value as determined pursuant to that provision minus an amount to reflect the value of the benefit to persons who purchase the like goods on resale.

1984, c. 25, s. 23.

Marginal note:Costs during start-up period

23.1 Where, in calculating the normal value of any goods, the investigation period includes a start-up period of production, the cost of production of the goods and the administrative, selling and all other costs with respect to the goods for that start-up period of production shall be determined in the prescribed manner.

1994, c. 47, s. 157.

Export Price

Marginal note:Determination of export price of goods

24. The export price of goods sold to an importer in Canada, notwithstanding any invoice or affidavit to the contrary, is an amount equal to the lesser of

(a) the exporter’s sale price for the goods, adjusted by deducting therefrom

(i) the costs, charges and expenses incurred in preparing the goods for shipment to Canada that are additional to those costs, charges and expenses generally incurred on sales of like goods for use in the country of export,

(ii) any duty or tax imposed on the goods by or pursuant to a law of Canada or of a province, to the extent that the duty or tax is paid by or on behalf or at the request of the exporter, and

(iii) all other costs, charges and expenses resulting from the exportation of the goods, or arising from their shipment, from the place described in paragraph 15(e) or the place substituted therefor by virtue of paragraph 16(1)(a), and

(b) the price at which the importer has purchased or agreed to purchase the goods, adjusted by deducting therefrom all costs, charges, expenses, duties and taxes described in subparagraphs (a)(i) to (iii).

Marginal note:Special rules to determine export price

(a) there is no exporter’s sale price or no price at which the importer in Canada has purchased or agreed to purchase the goods, or

(b) the President is of the opinion that the export price, as determined under section 24, is unreliable

(i) by reason that the sale of the goods for export to Canada was a sale between associated persons, or

(ii) by reason of a compensatory arrangement, made between any two or more of the following, namely, the manufacturer, producer, vendor, exporter, importer in Canada, subsequent purchaser and any other person, that directly or indirectly affects or relates to

(A) the price of the goods,

(B) the sale of the goods,

(C) the net return to the manufacturer, producer, vendor or exporter of the goods, or

(D) the net cost to the importer of the goods,

the export price of the goods is

(c) if the goods were sold by the importer in the condition in which they were or are to be imported to a person with whom, at the time of the sale, he was not associated, the price for which the goods were so sold less an amount equal to the aggregate of

(i) all costs, including duties imposed by virtue of this Act or the Customs Tariff and taxes,

(A) incurred on or after the importation of the goods and on or before their sale by the importer, or

(B) resulting from their sale by the importer,

(ii) an amount for profit by the importer on the sale,

(iii) the costs, charges and expenses incurred by the exporter, importer or any other person in preparing the goods for shipment to Canada that are additional to those costs, charges and expenses generally incurred on sales of like goods for use in the country of export, and

(iv) all other costs, charges and expenses incurred by the exporter, importer or any other person resulting from the exportation of the imported goods, or arising from their shipment, from the place described in paragraph 15(e) or the place substituted therefor by virtue of paragraph 16(1)(a),

(d) if the goods are imported for the purpose of assembly, packaging or other further manufacture in Canada or for incorporation into other goods in the course of manufacture or production in Canada, the price of the goods as assembled, packaged or otherwise further manufactured, or of the goods into which the imported goods have been incorporated, when sold to a person with whom the vendor is not associated at the time of the sale, less an amount equal to the aggregate of

(i) an amount for profit on the sale of the assembled, packaged or otherwise further manufactured goods or of the goods into which the imported goods have been incorporated,

(ii) the administrative, selling and all other costs incurred in selling the goods described in subparagraph (i),

(iii) the costs that are attributable or in any manner related to the assembly, packaging or other further manufacture or to the manufacture or production of the goods into which the imported goods have been incorporated,

(iv) the costs, charges and expenses incurred by the exporter, importer or any other person in preparing the imported goods for shipment to Canada that are additional to those costs, charges and expenses generally incurred on sales of like goods for use in the country of export, and

(v) all other costs, charges and expenses, including duties imposed by virtue of this Act or the Customs Tariff and taxes,

(A) resulting from the exportation of the imported goods, or arising from their shipment, from the place described in paragraph 15(e) or the place substituted therefor by virtue of paragraph 16(1)(a) that are incurred by the exporter, importer or any other person, or

(B) incurred on or after the importation of the imported goods and on or before the sale of the goods as assembled, packaged or otherwise further manufactured or of the goods into which the imported goods have been incorporated, or

(e) in any cases not provided for by paragraphs (c) and (d), the price determined in such manner as the Minister specifies.

Marginal note:No deduction

(2) No deduction for duties imposed by virtue of this Act may be made under

(a) subparagraph (1)(c)(i), in the case of an export price determined under paragraph (1)(c), or

(b) subparagraph (1)(d)(v), in the case of an export price determined under paragraph (1)(d),

where, in the opinion of the President, the export price determined under either of those paragraphs without making such a deduction is equal to or greater than the normal value of the goods.

Marginal note:Export price where agreement affects anti-dumping duty

26. Where the manufacturer, producer, vendor or exporter of goods sold to an importer in Canada undertakes, directly or indirectly in any manner whatever, to indemnify, pay on behalf of or reimburse the importer or purchaser in Canada of the goods for all or any part of the anti-dumping duty that may be levied on the goods,

(a) the indemnity, payment or reimbursement is deemed not to be a compensatory arrangement referred to in subparagraph 25(1)(b)(ii); and

(b) the export price of the goods is the export price thereof as otherwise determined under this Act minus the amount of the indemnity, payment or reimbursement.

R.S., 1985, c. S-15, s. 26;

1999, c. 12, s. 9.

Marginal note:Credit sales of goods sold to importer in Canada

27. (1) For the purposes of sections 24 and 25, where any sale of goods referred to in those sections was made on credit terms other than cash discounts, the sale price for the goods is deemed to be an amount equal to the quotient obtained when

(a) the aggregate of the present value of every payment of principal or interest, or of principal and interest, provided for by any agreement entered into with respect to the sale, determined

(i) as of the time of the sale, and

(ii) by reference to a discount rate equal to

(A) the interest rate prevailing, at the time of the sale, in the country in which the vendor is located for commercial loans available in that country in the currency in which the payments are expressed in the agreement and on terms, other than the interest rate, comparable to the credit terms on which the sale of the goods was made, or

(B) where it is not possible to ascertain the interest rate referred to in clause (A) or there is no such interest rate, the interest rate selected as provided for by regulations made pursuant to paragraph 97(j),

is divided by

(b) the number or quantity of the goods sold,

so as to arrive at a unit price for the goods sold.

Marginal note:Adjustment of unit price

(1.1) The unit price arrived at under subsection (1) shall be adjusted in the prescribed manner and circumstances.

Marginal note:Where agreement relates to several goods

(2) For the purpose of paragraph (1)(a), where an agreement with respect to the sale of goods referred to in section 24 or 25 also relates to the sale of other goods, only such portion of the present value of any payment of principal or interest, or of principal and interest, provided for by the agreement as is reasonably attributable to the goods referred to in section 24 or 25, as the case may be, shall be included in determining the aggregate referred to in that paragraph.

R.S., 1985, c. S-15, s. 27;

1999, c. 12, s. 10.

Marginal note:Where exporter provides benefit on resale in Canada

28. For the purposes of sections 24 and 25, where the exporter of goods sold to an importer in Canada agrees with the importer to provide, directly or indirectly, to persons who purchase the goods in Canada

(a) on resale from the importer, or

(b) from any person on any subsequent resale,

any benefit by way of rebate, service, other goods or otherwise, the export price of the goods is the export price as otherwise determined under this Act, after subtracting therefrom any amount that is required to be subtracted under section 26, minus an amount to reflect the value of the benefit to persons who purchase the goods on resale.

1984, c. 25, s. 28.

Normal Value and Export Price

Marginal note:Normal value and export price where information not available

29. (1) Where, in the opinion of the President, sufficient information has not been furnished or is not available to enable the determination of normal value or export price as provided in sections 15 to 28, the normal value or export price, as the case may be, shall be determined in such manner as the Minister specifies.

Marginal note:Consignment shipments

(2) Where goods are or are to be shipped to Canada on consignment and there is no known purchaser in Canada of the goods, the normal value and export price of the goods shall be determined in such manner as the Minister specifies.

Marginal note:Normal value and export price where goods exported to Canada through another country

30. (1) Where goods are exported to Canada from one country but pass in transit through another country, the normal value and export price of the goods shall, subject to such terms and conditions as to shipment, documentation, warehousing, transhipment or the like as are prescribed, be determined as if the goods were shipped directly to Canada from the first mentioned country.

(a) are or are to be shipped indirectly to Canada from the country of origin through one or more other countries, and

(b) would, but for this section, have a normal value as computed under sections 15 to 23 or section 29 that is less than the normal value would be if the country of export were the country of origin,

the normal value and export price of the goods shall, notwithstanding any other provision of this Act, be determined as if the goods were or were to be shipped directly to Canada from the country of origin.

R.S., 1985, c. S-15, s. 30;

1999, c. 12, s. 11.

Margin of Dumping

Marginal note:Determination of margin of dumping in respect of a country

30.1 For the purposes of subparagraphs 35(1)(a)(ii), 38(1)(a)(i) and 41(1)(a)(ii) and paragraphs 41.1(1)(a) and (2)(a), the margin of dumping in relation to goods of a particular country is the weighted average of the margins of dumping determined in accordance with section 30.2.

1994, c. 47, s. 159;

1999, c. 12, s. 12.

Marginal note:Margin of dumping re goods of an exporter

30.2 (1) Subject to subsection (2), the margin of dumping in relation to any goods of a particular exporter is zero or the amount determined by subtracting the weighted average export price of the goods from the weighted average normal value of the goods, whichever is greater.

Marginal note:If variation in price

(2) The President may determine the margin of dumping in relation to any goods of a particular exporter to be the weighted average of the margins of dumping in relation to the goods of that exporter that are sold in any individual sales of goods of that exporter that the President considers relevant if, in the opinion of the President, there are significant variations in the prices of goods of that exporter among purchasers, regions in Canada or time periods.

Marginal note:Price of like goods

(3) Where subsection (2) applies and any of the normal values used to determine the margins of dumping in relation to goods sold in individual sales are determined in accordance with section 15, the price of like goods used to determine those normal values is the weighted average, determined in accordance with paragraph 17(a), of the prices at which the like goods were sold.

Marginal note:Margin of dumping based on sample

30.3 (1) The President may, if the President is of the opinion that it would be impracticable to determine a margin of dumping in relation to all goods under consideration because of the number of exporters, producers or importers, the variety or volume of goods or any other reason, determine margins of dumping in relation to

(a) the largest percentage of goods of each of the countries whose goods are under consideration that, in the opinion of the President, can reasonably be investigated; or

(b) samples of the goods of each of the countries whose goods are under consideration that, in the opinion of the President based on the information available at the time of selection, are statistically valid.

Marginal note:Where information submitted

(2) Where subsection (1) applies, the President shall determine a margin of dumping in relation to any goods under consideration that were not included in the percentage or sample, as the case may be, referred to in that subsection where

(a) the exporter of the goods submits information for the purpose of determining a margin of dumping; and

(b) in the opinion of the President, it is practicable to do so.

Marginal note:Other cases

(3) Where subsection (1) applies with respect to goods under consideration, the margin of dumping in relation to those goods that were not included in the percentage or sample and those goods for which a margin of dumping was not determined in accordance with subsection (2) shall be determined in the prescribed manner.

Amount of Subsidy

Marginal note:Amount of subsidy

30.4 (1) Subject to subsections (2) and (3), the amount of subsidy in relation to any goods shall be determined in the prescribed manner.

Marginal note:Where no prescribed manner

(2) Where no manner of determining an amount of subsidy has been prescribed or, in the opinion of the President, sufficient information has not been provided or is not otherwise available to enable the determination of the amount of subsidy in the prescribed manner, the amount of subsidy shall, subject to subsection (3), be determined in such manner as the Minister may specify.

Marginal note:Exception

(3) An amount of subsidy shall not include any amount that is attributable to a non-actionable subsidy.

Procedure in Dumping and Subsidy Investigations

Commencement of Investigation

Marginal note:Initiation of investigation

31. (1) The President shall cause an investigation to be initiated respecting the dumping or subsidizing of any goods and whether there is a reasonable indication that such dumping or subsidizing has caused injury or retardation or is threatening to cause injury, forthwith on the President’s own initiative or, subject to subsection (2), where the President receives a written complaint respecting the dumping or subsidizing of the goods, within thirty days after the date on which written notice is given by or on behalf of the President to the complainant that the complaint is properly documented, if the President is of the opinion that there is evidence

(a) that the goods have been dumped or subsidized; and

(b) that discloses a reasonable indication that the dumping or subsidizing has caused injury or retardation or is threatening to cause injury.

Marginal note:Standing

(2) No investigation may be initiated under subsection (1) as a result of a complaint unless

(a) the complaint is supported by domestic producers whose production represents more than fifty per cent of the total production of like goods by those domestic producers who express either support for or opposition to the complaint; and

(b) the production of the domestic producers who support the complaint represents twenty-five per cent or more of the total production of like goods by the domestic industry.

Meaning of “domestic producers”

(2.1) For the purpose of paragraph (2)(a), if a domestic producer is an importer of, or is related to an exporter or importer of, allegedly dumped or subsidized goods, “domestic producers” may, subject to subsection 2(1.1), be interpreted as meaning the rest of those domestic producers.

Meaning of “domestic industry”

(3) In paragraph (2)(b), domestic industry means, subject to subsection 2(1.1), the domestic producers as a whole of the like goods except that, if a domestic producer is related to an exporter or importer of allegedly dumped or subsidized goods, or is an importer of such goods, “domestic industry” may be interpreted as meaning the rest of those domestic producers.

Marginal note:Producers related to exporters or importers

(4) For the purposes of subsections (2.1) and (3), a domestic producer is related to an exporter or importer if

(a) the producer either directly or indirectly controls, or is controlled by, the exporter or importer,

(b) the producer and the exporter or the importer, as the case may be, are directly or indirectly controlled by a third person, or

(c) the producer and the exporter or the importer, as the case may be, directly or indirectly control a third person,

and there are grounds to believe that the producer behaves differently towards the exporter or importer than does a non-related producer.

Marginal note:Where there is deemed to be control

(5) For the purposes of subsection (4), a person is deemed to control another person where the first person is legally or operationally in a position to exercise restraint or direction over the other person.

Marginal note:Extension of thirty day period

(6) The period of thirty days referred to in subsection (1) is extended to forty-five days where, before the expiration of the thirty days, the President causes written notice to be given to the complainant and to the government of the country of export that the period of thirty days is insufficient to determine whether there is compliance with either or both of the conditions referred to in subsection (2) and subsection 31.1(1).

Marginal note:Initiation of investigation

(7) The President may, on receipt of a notice in writing from the Tribunal pursuant to section 46 respecting the dumping or subsidizing of any goods, cause an investigation to be initiated respecting the dumping or subsidizing of any goods described in the notice.

Marginal note:Initiation of investigation

(8) Where a reference is made to the Tribunal pursuant to subsection 33(2) and the Tribunal advises that the evidence discloses a reasonable indication that the dumping or subsidizing of the goods that are the subject of the reference has caused injury or retardation or is threatening to cause injury, the President shall initiate an investigation respecting the dumping or subsidizing of the goods forthwith after receipt of the advice.

Marginal note:No investigation where subsidy notified

31.1 (1) Subject to subsections (2) and (3), the President may not initiate an investigation with respect to a subsidy that has been notified to the Committee, in accordance with Article 8.3 of the Subsidies Agreement, as being a non-actionable subsidy.

Marginal note:Where determination that subsidy is actionable

(2) Subject to subsection (3), the President may initiate an investigation with respect to a subsidy referred to in subsection (1) where there is a determination that the subsidy is not a non-actionable subsidy by

(a) the Committee, as the result of a review of the notification pursuant to a request under Article 8.4 of the Subsidies Agreement; or

(b) an arbitration body as a result of the submission to binding arbitration under Article 8.5 of the Subsidies Agreement of

(i) a determination by the Committee that the subsidy is a non-actionable subsidy, or

(ii) the failure of the Committee to make a determination pursuant to a request under Article 8.4 of the Subsidies Agreement.

Marginal note:Where redetermination that subsidy is actionable

(3) The President may initiate an investigation with respect to a subsidy that was determined, by the Committee or an arbitration body, to be a non-actionable subsidy where the Committee or an arbitration body makes a redetermination that the subsidy is no longer a non-actionable subsidy.

Marginal note:Notification

(4) The President shall without delay notify the Deputy Minister of Finance and the complainant if the President is of the opinion that

(a) a subsidy that was not notified to the Committee in accordance with Article 8.3 of the Subsidies Agreement is a non-actionable subsidy; or

(b) a subsidy that was determined by the Committee or an arbitration body to be a non-actionable subsidy may, as a result of substantial modification to the nature or delivery of the subsidy, no longer be a non-actionable subsidy.

Marginal note:Where Deputy Minister of Finance receives notification

(5) The Deputy Minister of Finance shall, on receipt of notification under subsection (4), notify the Deputy Minister of International Trade and any other person who, in the opinion of the Deputy Minister of Finance, is interested, of the matters referred to in paragraphs (4)(a) and (b).

Marginal note:Where President receives a complaint

32. (1) Where the President receives a written complaint respecting the dumping or subsidizing of goods, he shall, within twenty-one days after the receipt thereof,

(a) where the complaint is properly documented, cause the complainant and the government of the country of export to be informed in writing that the complaint was received and that it is properly documented; or

(b) where the complaint is not properly documented, cause the complainant to be informed that the complaint was received and that additional information and material is needed in order for the complaint to be properly documented.

Marginal note:Additional information and material

(2) For the purposes of subsection (1), where the President receives from a complainant additional written information or material in relation to a complaint referred to in that subsection with respect to which he has at any time caused the complainant to be informed pursuant to paragraph (1)(b), the President shall, unless, before the receipt of the additional information or material, he has caused the complainant to be informed in writing pursuant to paragraph (1)(a) that the complaint is properly documented, be deemed to have received, on the day that he received the additional written information or material, a complaint respecting the dumping or subsidizing of goods composed of the complaint with respect to which he has caused the complainant to be so informed pursuant to paragraph (1)(b) and the additional information or material.

Marginal note:Deemed complaint

(3) If a written complaint filed with the Tribunal under subsection 23(1) of the Canadian International Trade Tribunal Act is referred to the President under subsection 26(4) or 28(1) of that Act, the President is deemed to have received a written complaint described in subsection (1).

Marginal note:Where President decides not to initiate investigation

33. (1) Where, after receipt of a properly documented complaint respecting the dumping or subsidizing of goods, the President decides, with respect to some or all of the goods specified in the complaint, not to cause an investigation to be initiated, the President shall cause a written notice of the decision, setting out the reasons therefor, to be sent to the complainant and to the government of the country of export.

Marginal note:Reference to Tribunal

(2) Where, after receipt of a properly documented complaint respecting the dumping or subsidizing of goods, the President decides, with respect to some or all of the goods specified in the complaint, not to cause an investigation to be initiated by reason only that in the opinion of the President the evidence does not disclose a reasonable indication that the dumping or subsidizing of the goods in respect of which the President has so decided has caused injury or retardation or is threatening to cause injury,

(a) the President may, on the date of the notice referred to in subsection (1), or

(b) the complainant may, within thirty days after the date of the notice referred to in subsection (1),

refer to the Tribunal the question whether the evidence discloses a reasonable indication that the dumping or subsidizing of the goods in respect of which the President has so decided has caused injury or retardation or is threatening to cause injury.

(b) without delay provide the Tribunal with the information and material with respect to the matter that is required under the Tribunal’s rules.

Marginal note:Tribunal to make preliminary inquiry

(2) The Tribunal shall, without delay after receipt by the Secretary under subparagraph (1)(a)(i) of a notice of an initiation of an investigation, make a preliminary inquiry (which need not include an oral hearing) into whether the evidence discloses a reasonable indication that the dumping or subsidizing of the goods has caused injury or retardation or is threatening to cause injury.

Marginal note:Termination of investigation or inquiry

35. (1) The President shall act under subsection (2) and the Tribunal shall act under subsection (3) if, at any time before the President makes a preliminary determination under subsection 38(1) in respect of goods of a country or countries,

(a) the President is satisfied in respect of some or all of those goods that

(i) there is insufficient evidence of dumping or subsidizing to justify proceeding with the investigation,

(ii) the margin of dumping of, or the amount of subsidy on, the goods of that country or of any of those countries is insignificant, or

(iii) the actual and potential volume of dumped or subsidized goods is negligible; or

(b) the Tribunal comes to the conclusion in respect of some or all of those goods that the evidence does not disclose a reasonable indication that the dumping or subsidizing of the goods has caused injury or retardation or is threatening to cause injury.

Marginal note:Duty of President

(2) The President shall

(a) cause the investigation to be terminated with respect to the goods in respect of which the President is so satisfied or the Tribunal has come to that conclusion; and

(b) cause notice of the termination to be

(i) given to the Secretary, the exporter, the importer, the government of the country of export, the complainant, if any, and any prescribed persons, and

Preliminary Determination of Injury or of Dumping or Subsidizing

Marginal note:Preliminary determination of injury

37.1 (1) On or before the sixtieth day after the initiation of an investigation under section 31, the Tribunal shall make, with respect to the goods in respect of which the investigation has not been terminated under section 35, a preliminary determination that there is evidence that discloses a reasonable indication that the dumping or subsidizing has caused injury or retardation or is threatening to cause injury.

Marginal note:Notification

(2) The Tribunal shall cause notice of the preliminary determination to be

(a) given to the President, the exporter, the importer, the government of the country of export, the complainant, if any, and any prescribed persons; and

Marginal note:Preliminary determination of dumping or subsidizing

38. (1) Subject to section 39, after the sixtieth and on or before the ninetieth day after the initiation of an investigation under section 31, the President shall make a preliminary determination of dumping or subsidizing with respect to the goods in respect of which the investigation has not been terminated under section 35 after estimating and specifying, in relation to each exporter of goods in respect of which the investigation is made, as follows:

(a) in the case of dumped goods,

(i) estimating the margin of dumping of the goods to which the preliminary determination applies, using the information available to him at the time the estimate is made, and

(ii) specifying the goods to which the preliminary determination applies;

(b) in the case of subsidized goods,

(i) estimating the amount of subsidy on the goods to which the preliminary determination applies, using the information available to him at the time the estimate is made,

(ii) specifying the goods to which the preliminary determination applies, and

(iii) subject to subsection (2), where the whole or any part of the subsidy on the goods to which the preliminary determination applies is a prohibited subsidy, specifying that there is a prohibited subsidy on the goods and estimating the amount of the prohibited subsidy thereon; and

(c) in the case of dumped or subsidized goods, specifying the name of the person the President believes, on the information available to the President at the time the President makes the estimate referred to in subparagraph (a)(i) or (b)(i), as the case may be, is the importer in Canada of the goods.

Marginal note:Exception

(2) The President shall not specify or estimate anything pursuant to subparagraph (1)(b)(iii) where the President is of the opinion that, having regard to the country that is providing the export subsidy, the nature of the goods on which there is an export subsidy and the circumstances under which the export subsidy is provided, provision of the export subsidy in relation to those goods is not inconsistent with that country’s obligations under the international agreement known as the General Agreement on Tariffs and Trade, 1994.

Marginal note:Notice of preliminary determination

(3) Where the President makes a preliminary determination under subsection (1), the President shall

(a) cause notice of the determination to be given and published as provided in paragraph 34(1)(a); and

(b) cause to be filed with the Secretary written notice of the determination, stating the reasons therefor, together with such other material relating to the determination as may be required under the rules of the Tribunal.

Marginal note:Time extended

39. (1) If, in any investigation respecting the dumping or subsidizing of goods, the President, before the expiration of the ninety days referred to in subsection 38(1), causes written notice to be given to the persons and the government referred to in paragraph 34(1)(a) that by reason of

(a) the complexity or novelty of the issues presented by the investigation,

(b) the variety of goods or number of persons involved in the investigation,

(c) the difficulty of obtaining satisfactory evidence in the investigation, or

(d) any other circumstance specified in the notice that, in the opinion of the President, makes it unusually difficult for him to decide within those ninety days whether to terminate the investigation with respect to some or all of the goods, proceed in accordance with subsection 38(1) or accept an undertaking or undertakings,

the decision referred to in paragraph (d) will not be made within those ninety days, the period of ninety days referred to in section 38 is thereupon extended to one hundred and thirty-five days.

Marginal note:Notice of time extension

(2) Where the President causes notice to be given pursuant to subsection (1), he shall cause a notice to the same effect to be published in the Canada Gazette forthwith.

Final Determination

Marginal note:Final determination or termination

41. (1) Within ninety days after making a preliminary determination under subsection 38(1) in respect of goods of a country or countries, the President shall

(a) if, on the available evidence, the President is satisfied, in relation to the goods of that country or countries in respect of which the investigation is made, that

(i) the goods have been dumped or subsidized, and

(ii) the margin of dumping of, or the amount of subsidy on, the goods of that country or of any of those countries is not insignificant,

make a final determination of dumping or subsidizing with respect to the goods after specifying, in relation to each exporter of goods of that country or countries in respect of which the investigation is made as follows:

(iii) in the case of dumped goods, specifying the goods to which the determination applies and the margin of dumping of the goods, and

(iv) in the case of subsidized goods,

(A) specifying the goods to which the determination applies,

(B) specifying the amount of subsidy on the goods, and

(C) subject to subsection (2), where the whole or any part of the subsidy on the goods is a prohibited subsidy, specifying the amount of the prohibited subsidy on the goods; or

(b) where, on the available evidence, there is no exporter described in paragraph (a) with respect to whom the President is satisfied in accordance with that paragraph, cause the investigation to be terminated with respect to the goods.

Marginal note:Exception

(2) The President shall not specify anything under clause (1)(a)(iv)(C) if the President is of the opinion that, having regard to the country that is providing the export subsidy, the nature of the goods and the circumstances under which the export subsidy is provided, provision of the export subsidy in relation to those goods is not inconsistent with that country’s obligations under the international agreement known as the General Agreement on Tariffs and Trade, 1994.

Marginal note:Notice of final determination

(3) Where the President makes a final determination of dumping or subsidizing in respect of goods, he shall cause notice that he has made the determination to be

(a) given and published as provided in paragraph 34(1)(a); and

(b) filed with the Secretary in writing, stating the reasons therefor, together with such other material relating to the determination as may be required under the rules of the Tribunal.

Marginal note:Notice of termination

(4) Where the President causes an investigation respecting the dumping or subsidizing of any goods to be terminated pursuant to subsection (1) in respect of those goods, he shall cause notice of the termination to be

Marginal note:Action on final determination or decision referred back by Court

41.1 (1) Where a final determination under paragraph 41(1)(a) or a decision under paragraph 41(1)(b) is set aside and the matter referred back to the President on an application under section 96.1, the President shall

(a) reconsider the matter and make a new final determination or decision; and

(b) cause notice of the action taken pursuant to paragraph (a) to be given and published as provided in paragraph 34(1)(a) and to be given in writing to the Secretary.

Marginal note:Action on final determination or decision referred back by panel

(2) Where a final determination under paragraph 41(1)(a) or a decision under paragraph 41(1)(b) is referred back to the President under subsection 77.015(3) or (4) or 77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the President shall

(a) reconsider the final determination or decision and confirm or rescind it or, in the case of a final determination, vary it; and

(b) cause notice of the action taken pursuant to paragraph (a) to be given and published as provided in paragraph 34(1)(a) and to be given in writing to the Secretary and the Canadian Secretary.

Marginal note:Final determination

(3) Where the President reconsiders a matter involving a final determination pursuant to subsection (1) or reconsiders and rescinds a final determination pursuant to subsection (2), section 41 shall again apply in respect of the goods to which the final determination applied as if that section had not previously applied in respect of those goods, except that the action that the President is required by that section to take shall, notwithstanding anything therein, be taken by the President within such period as is specified by the panel that made the order or the Federal Court of Appeal, as the case may be, or, in the case of the Federal Court of Appeal, within ninety days after the Court gives its ruling, if it did not specify a period.

Marginal note:Decision to terminate

(4) Where the President reconsiders a matter involving a decision pursuant to subsection (1) or reconsiders and rescinds a decision pursuant to subsection (2),

(a) the President shall be deemed to have made, on the day on which the order referring the matter or decision back to the President was made, a preliminary determination of dumping or subsidizing in respect of the goods that were the subject of the investigation that was terminated;

(b) the President shall resume the investigation that was terminated;

(c) section 41 shall again apply as described in subsection (3); and

(d) sections 42 and 43 shall again apply in respect of the goods to which the decision relates as if those sections had not previously applied in respect of those goods, except that the action that the Tribunal is required by those sections to take shall, notwithstanding anything therein, be taken by the Tribunal within one hundred and twenty days after the day on which the order referring the decision back to the President was made.

Inquiries by Tribunal

Marginal note:Tribunal to make inquiry

42. (1) The Tribunal, forthwith after receipt by the Secretary pursuant to subsection 38(3) of a notice of a preliminary determination, shall make inquiry with respect to such of the following matters as is appropriate in the circumstances:

(a) in the case of any goods to which the preliminary determination applies, as to whether the dumping or subsidizing of the goods

(i) has caused injury or retardation or is threatening to cause injury, or

(ii) would have caused injury or retardation except for the fact that provisional duty was imposed in respect of the goods;

(b) in the case of any dumped goods to which the preliminary determination applies, as to whether

(i) either

(A) there has occurred a considerable importation of like goods that were dumped, which dumping has caused injury or would have caused injury except for the application of anti-dumping measures, or

(B) the importer of the goods was or should have been aware that the exporter was practising dumping and that the dumping would cause injury, and

(ii) injury has been caused by reason of the fact that the dumped goods

(A) constitute a massive importation into Canada, or

(B) form part of a series of importations into Canada, which importations in the aggregate are massive and have occurred within a relatively short period of time,

and it appears necessary to the Tribunal that duty be assessed on the imported goods in order to prevent the recurrence of that injury; and

(c) in the case of any subsidized goods in respect of which a specification has been made pursuant to clause 41(1)(a)(iv)(C) and to which the preliminary determination applies as to whether

(i) injury has been caused by reason of the fact that the subsidized goods

(A) constitute a massive importation into Canada, or

(B) form part of a series of importations into Canada, which importations in the aggregate are massive and have occurred within a relatively short period of time, and

(ii) a countervailing duty should be imposed on the subsidized goods in order to prevent the recurrence of that injury.

Marginal note:Tribunal to make or resume inquiry

(2) Where the Secretary receives a notice pursuant to paragraph 52(1)(e) in respect of goods with respect to which an undertaking or undertakings have been terminated, the Tribunal shall, unless it has already made a finding with respect to the goods, forthwith make or resume its inquiry as to whether the dumping or subsidizing

(a) has caused injury or retardation or is threatening to cause injury; or

(b) would have caused, during any period after the undertaking or undertakings, as the case may be, with respect to the goods were accepted, injury, retardation or threat of injury except for that acceptance.

Marginal note:Assessment of cumulative effect

(3) In making or resuming its inquiry under subsection (1), the Tribunal shall make an assessment of the cumulative effect of the dumping or subsidizing of goods to which the preliminary determination applies that are imported into Canada from more than one country if the Tribunal is satisfied that

(a) the margin of dumping or the amount of subsidy in relation to the goods from each of those countries is not insignificant and the volume of the goods from each of those countries is not negligible; and

(b) an assessment of the cumulative effect would be appropriate taking into account the conditions of competition between goods to which the preliminary determination applies that are imported into Canada from any of those countries and

(i) goods to which the preliminary determination applies that are imported into Canada from any other of those countries, or

(ii) like goods of domestic producers.

Marginal note:Tribunal to be guided by Canada’s obligations

(4) The Tribunal shall, in making a cumulative assessment under subsection (3), take into account the provisions of paragraph 12 of Article 27 of the Subsidies Agreement.

Marginal note:Termination of inquiry if volume is negligible

(4.1) If the Tribunal determines that the volume of dumped or subsidized goods from a country is negligible, the Tribunal shall terminate its inquiry in respect of those goods.

Marginal note:When domestic industry based on regional markets

(5) Where subsection 2(1.1) applies in respect of the dumping or subsidizing of goods to which the preliminary determination applies, the Tribunal shall not find that the dumping or subsidizing of those goods has caused injury or retardation or is threatening to cause injury unless

(a) there is a concentration of those goods into the regional market; and

(b) the dumping or subsidizing of those goods has caused injury or retardation or is threatening to cause injury to the producers of all or almost all of the production of like goods in the regional market.

Marginal note:Volume of dumped or subsidized goods

(6) For the purposes of this section, the volume of dumped or subsidized goods from a country is deemed to include the volume of goods of the country that are of the same description and are the subject of a sale for export to Canada.

R.S., 1985, c. S-15, s. 42;

1994, c. 47, s. 169;

1999, c. 12, ss. 26, 52(E).

Marginal note:Tribunal to make order or finding

43. (1) In any inquiry referred to in section 42 in respect of any goods, the Tribunal shall, forthwith after the date of receipt by the Secretary of notice of a final determination of dumping or subsidizing with respect to any of those goods, but, in any event, not later than one hundred and twenty days after the date of receipt by the Secretary of notice of a preliminary determination with respect to the goods, make such order or finding with respect to the goods to which the final determination applies as the nature of the matter may require, and shall declare to what goods, including, where applicable, from what supplier and from what country of export, the order or finding applies.

Marginal note:Separate order or finding

(1.01) Where an inquiry referred to in section 42 involves goods of

(a) more than one NAFTA country, or

(b) one or more NAFTA countries and goods of one or more other countries,

the Tribunal shall make a separate order or finding under subsection (1) with respect to the goods of each NAFTA country.

Marginal note:Suspension of s. (1.1)

(1.02) The operation of subsection (1.1) is suspended during the period in which subsection (1.01) is in force.

Marginal note:Separate order or finding

(1.1) Where an inquiry referred to in section 42 involves goods of the United States as well as goods of other countries, the Tribunal shall make a separate order or finding under subsection (1) with respect to the goods of the United States.

Marginal note:Notice of order or finding

(2) The Secretary shall forward by registered mail to the President, the importer, the exporter and such other persons as may be specified by the rules of the Tribunal

(a) forthwith after it is made, a copy of each order or finding made by the Tribunal pursuant to this section; and

(b) not later than fifteen days after the making of an order or finding by the Tribunal pursuant to this section, a copy of the reasons for making the order or finding.

Marginal note:Publication of notice

(3) The Secretary shall cause a notice of each order or finding made by the Tribunal pursuant to this section to be published in the Canada Gazette.

Marginal note:Recommencement of inquiry

44. (1) Where pursuant to an application for judicial review under the Federal Courts Act or an application under section 96.1 of this Act, an order or finding of the Tribunal is set aside or is set aside in relation to particular goods, the Tribunal shall

(a) where the matter is referred back to the Tribunal for determination, forthwith recommence the inquiry made in respect of the goods to which the order or finding applies or in respect of the particular goods, as the case may be, and

(b) in any other case, decide, within thirty days after the final disposition of the application, whether or not to recommence the inquiry in respect of the goods to which the order or finding applies or in respect of the particular goods, as the case may be, and, if the Tribunal decides that the inquiry should be recommenced, forthwith recommence the inquiry,

and a new order or finding compatible with the final disposition of the issues raised by or as a result of the application shall be made by the Tribunal with respect to the goods in respect of which the inquiry is recommenced forthwith and, in any event, not later than one hundred and twenty days after

(c) where paragraph (a) applies, the date on which the order or finding is set aside, and

(d) where paragraph (b) applies, the date on which the Tribunal decides that the inquiry should be recommenced.

Marginal note:Idem

(2) Where an inquiry is recommenced pursuant to subsection (1) with respect to any goods,

(a) the Secretary shall without delay give notice of the recommencement of the inquiry with respect to those goods to every person to whom the Secretary forwarded, under subsection 43(2), a copy of the order or finding with respect to which the application under the Federal Courts Act was made; and

(b) the Tribunal shall, for the purpose of making the new order or finding referred to in subsection (1), take any further steps in the inquiry, whether by way of hearing or re-hearing any matter, the receipt of additional evidence or otherwise, that it considers necessary or advisable.

Marginal note:Initiation of inquiry if imposition of duty not in public interest

45. (1) If, as a result of an inquiry referred to in section 42 arising out of the dumping or subsidizing of any goods, the Tribunal makes an order or finding described in any of sections 3 to 6 with respect to those goods, the Tribunal shall, on its own initiative or on the request of an interested person that is made within the prescribed period and in the prescribed manner, initiate a public interest inquiry if the Tribunal is of the opinion that there are reasonable grounds to consider that the imposition of an anti-dumping or countervailing duty, or the imposition of such a duty in the full amount provided for by any of those sections, in respect of the goods would not or might not be in the public interest.

Marginal note:Publication of notice

(2) The Secretary shall publish in the Canada Gazette notice of a decision to initiate a public interest inquiry.

Marginal note:Consideration of prescribed factors

(3) In a public interest inquiry, the Tribunal shall take into account any factors, including prescribed factors, that it considers relevant.

Marginal note:Report

(4) If, as a result of a public interest inquiry, the Tribunal is of the opinion that the imposition of an anti-dumping or countervailing duty, or the imposition of such a duty in the full amount provided for by any of sections 3 to 6, in respect of the goods would not or might not be in the public interest, the Tribunal shall without delay

(a) report to the Minister of Finance that it is of that opinion and provide that Minister with a statement of the facts and reasons that caused it to be of that opinion; and

Marginal note:Details in report

(5) If the Tribunal is of the opinion that the imposition of an anti-dumping or countervailing duty in the full amount would not or might not be in the public interest, the Tribunal shall, in the report referred to in paragraph (4)(a), specify either

(a) a level of reduction in the anti-dumping or countervailing duty provided for in any of sections 3 to 6; or

(b) a price or prices that are adequate to eliminate injury, retardation or the threat of injury to the domestic industry.

Marginal note:Persons interested may make representations

(6) If a person interested in a public interest inquiry makes a request to the Tribunal within the prescribed period and in the prescribed manner for an opportunity to make representations to the Tribunal on the question whether the Tribunal should make a report under paragraph (4)(a) with respect to any goods in respect of which the inquiry is being made, the Tribunal shall give that person an opportunity to make representations to the Tribunal on that question orally or in writing, or both, as the Tribunal directs in the case of that inquiry.

R.S., 1985, c. S-15, s. 45;

1999, c. 12, s. 27.

Marginal note:Tribunal to advise President

46. Where, during an inquiry referred to in section 42 respecting the dumping or subsidizing of goods to which a preliminary determination under this Act applies, the Tribunal is of the opinion that

(a) there is evidence that goods the uses and other characteristics of which closely resemble the uses and other characteristics of goods to which the preliminary determination applies have been or are being dumped or subsidized, and

(b) the evidence discloses a reasonable indication that the dumping or subsidizing referred to in paragraph (a) has caused injury or retardation or is threatening to cause injury,

the Tribunal, by notice in writing setting out the description of the goods first mentioned in paragraph (a), shall so advise the President.

Marginal note:Termination of proceedings

47. (1) An order or finding made by the Tribunal with respect to any dumped or subsidized goods, other than an order or finding described in any of sections 3 to 6, terminates all proceedings under this Act respecting the dumping or subsidizing of the goods, other than proceedings under Part I.1 or II or subsection 76.02(1) or (3).

Marginal note:Termination of inquiry — Chile

(2) If goods of Chile are exempted from the application of this Act by regulations made under section 14, the Tribunal shall issue an order terminating any inquiry referred to in section 42 to the extent that it relates to the dumping of those goods.

Marginal note:Notice of termination

(3) The Secretary shall

(a) send, immediately after an inquiry is terminated under subsection (2), notice of the termination to the President, the importer, the exporter, the Government of the Republic of Chile and any other persons who are specified by the rules of the Tribunal; and

(b) cause a notice of the termination to be published in the Canada Gazette.

Undertakings

Marginal note:Acceptance of undertaking

49. (1) Subject to subsection (2), the President may, in an investigation respecting the dumping or subsidizing of goods, accept an undertaking or undertakings with respect to dumped or subsidized goods where the President is of the opinion that observance of the undertaking or undertakings, as the case may be, will eliminate

(a) the margin of dumping of or the subsidy on

(i) where the undertaking is given by an exporter, the goods if they are sold by the exporter to importers in Canada, and

(ii) where the undertaking is given by the government of a country from which the goods are exported to Canada, the goods if they are exported to Canada from that country pursuant to sales thereof by exporters to importers in Canada; or

(b) any injury, retardation or threat of injury that is being caused by the dumping or subsidizing.

Marginal note:Idem

(2) The President shall not accept an undertaking with respect to dumped or subsidized goods

(a) unless he is of the opinion that observance of the undertaking will not cause

(i) where the undertaking is given by an exporter, the price at which the goods are sold to importers in Canada by the exporter, or

(ii) where the undertaking is given by the government of a country, the price at which the goods, when exported to Canada from that country, will be sold to importers in Canada,

to increase by more than the estimated margin of dumping of the goods or the estimated amount of subsidy thereon;

(b) unless the President has made a preliminary determination under subsection 38(1); or

(c) where he is of the opinion that it would not be practicable to administer the undertaking or undertakings, as the case may be.

Marginal note:Request to complete investigation and inquiry

(3) Where the exporter, in the case of an investigation and inquiry with respect to dumped goods, or the government of the exporting country, in the case of an investigation and inquiry with respect to subsidized goods, wishes to offer an undertaking with respect to the dumped or subsidized goods, as the case may be, but wishes the investigation and inquiry with respect to the goods to be completed,

(a) the undertaking must be accompanied by a request to the President to complete the investigation; and

(b) a request must be made to the Tribunal to complete its inquiry.

Marginal note:Time for offering undertaking

(4) The President may refuse to accept any undertaking offered after such period of time as is prescribed for the purpose of this subsection.

Marginal note:Consideration of representations

(5) In considering whether to accept an undertaking, the President shall consider any representations received from the importer, exporter, government of the country of export or any other interested person.

Marginal note:Procedure where undertaking accepted

50. Forthwith after the President accepts, in an investigation by the President under section 31, an undertaking or undertakings with respect to dumped or subsidized goods,

(a) the President shall

(i) cause notice of the acceptance to be given and published as provided in paragraph 34(1)(a),

(ii) suspend the collection of provisional duties with respect to those goods, as provided under subsection 8(5),

(iii) suspend the investigation unless the requests referred to in subsection 49(3) were made, and

(iv) notify the Tribunal of any suspension under subparagraph (iii); and

(b) the Tribunal shall suspend its inquiry with respect to the dumping or subsidizing of goods with respect to which the undertaking or undertakings have been accepted unless the requests referred to in subsection 49(3) were made.

Marginal note:Suspension of operation of time period

50.1 (1) Where an undertaking has been accepted with respect to the dumping or subsidizing of goods, the operation of any period specified, pursuant to this Act, for the doing of any thing in relation to those goods is suspended for such period as the undertaking is in force and is resumed on the expiration or termination of the undertaking.

Marginal note:Extension of time period

(2) A period to which subsection (1) applies is extended by a period equal to

(a) where subsection 51(1) applies in respect of the undertaking, the period between the day on which the undertaking was accepted and the day on which it was terminated; or

(b) in any other case, the period between the day on which the preliminary determination was made in respect of the goods to which the undertaking applies and the day on which the undertaking was accepted.

1994, c. 47, s. 172.

Marginal note:President to terminate undertaking

51. (1) The President shall forthwith terminate an undertaking in respect of which the President receives, within thirty days after the date of the notice of acceptance of an undertaking or undertakings with respect to dumped or subsidized goods given pursuant to paragraph 50(a)(i) but before an order is made by the Tribunal under subsection 43(1) in respect of the goods, a request for termination from

(a) in the case of dumped goods, the importer or exporter of the goods or the complainant in the investigation respecting the goods; and

(b) in the case of subsidized goods, the importer, exporter or government of the country of export of the goods or the complainant in the investigation respecting the goods.

Marginal note:President to resume investigation

(2) Where the President terminates any undertaking pursuant to subsection (1), he shall forthwith cause the investigation to be resumed with respect to all the goods to which the investigation related when he accepted the undertaking or undertakings, as the case may be, and shall cause notice of the resumption of the investigation to be given as provided in paragraph 34(1)(a).

Marginal note:Acceptance of further undertakings

51.1 If an investigation has been suspended under subparagraph 50(a)(iii), the President may accept an undertaking in respect of dumped or subsidized goods from an exporter or government that had not previously offered an undertaking in respect of the goods that was accepted by the President under subsection 49(1) if the President is of the opinion that observance of the undertaking will not cause

(a) if the undertaking is given by an exporter, the price at which the goods are sold to importers in Canada by the exporter to increase by more than the estimated margin of dumping of the goods or the estimated amount of subsidy on the goods; or

(b) if the undertaking is given by the government of a country, the price at which the goods, when exported to Canada from that country, will be sold to importers in Canada to increase by more than the estimated amount of subsidy on the goods.

Marginal note:Termination of undertakings by President

52. (1) Where, at any time after accepting an undertaking or undertakings with respect to any dumped or subsidized goods that were the subject of an investigation, the President

(a) is satisfied that the undertaking or any of the undertakings has been or is being violated,

(b) is satisfied that the undertaking or undertakings would not have been accepted if the information available at that time had been available when the undertaking was accepted, or

(c) is satisfied that the undertaking or undertakings would not have been accepted if the circumstances prevailing at that time had prevailed when the undertaking was accepted,

the President shall forthwith

(d) terminate the undertaking or undertakings,

(e) cause notice of the termination of the undertaking or undertakings to be given and published as provided in paragraph 34(1)(a) and filed with the Secretary in writing, and

(f) where the investigation has been suspended under subparagraph 50(a)(iii), cause it to be resumed.

Marginal note:Termination where no dumping, etc.

(1.1) Where, at any time after the President accepts an undertaking or undertakings with respect to any dumped or subsidized goods that were the subject of an investigation,

(a) there has been a determination under subsection 41(1) or section 41.1 that

(i) there has been no dumping or subsidizing of the goods, or

(ii) the margin of dumping of, or the amount of subsidy on, the goods is insignificant,

(iii) [Repealed, 1999, c. 12, s. 31]

(b) an order or finding has been made under subsection 43(1) that there has been no injury, retardation or threat of injury as a result of the dumping or subsidizing of the goods, or

(c) the Tribunal has, under paragraph 76.01(5)(a), subsection 76.02(4), paragraph 76.03(12)(a) or subsection 76.04(1) or 76.1(2), rescinded an order or finding with respect to the goods or the order or finding has been deemed to be rescinded under subsection 76.03(1),

the President shall forthwith

(d) terminate the undertaking or undertakings, and

(e) cause notice of the termination of the undertaking or undertakings to be given and published as provided in paragraph 34(1)(a) and filed with the Secretary in writing.

Marginal note:Termination if conditions no longer exist

(1.2) Unless the Tribunal has made an order or finding under subsection 43(1) that the dumping or subsidizing of the goods to which the preliminary determination applies has caused injury or retardation or is threatening to cause injury, and that order or finding has not been rescinded under paragraph 76.01(5)(a), subsection 76.02(4), paragraph 76.03(12)(a) or subsection 76.04(1) or 76.1(2) or has not been deemed to be rescinded under subsection 76.03(1), the President shall terminate the undertaking or undertakings if, at any time after accepting the undertaking or undertakings, the President is satisfied that, notwithstanding the termination of the undertaking or undertakings, the condition in paragraph 49(1)(a) or (b), as the case may be, would no longer exist.

Marginal note:Effect of termination of undertaking

(1.3) A termination of an undertaking under subsection (1.2) terminates all proceedings under this Act respecting the dumping or subsidizing of the goods to which the undertaking relates, unless, in any case where the President has accepted two or more undertakings, the President, for good reason, otherwise directs.

Marginal note:Where no action to be taken

(2) Where, in any investigation respecting the dumping or subsidizing of goods, a number of undertakings are accepted by the President under section 49 and any one or more of those undertakings have been or are being violated, the President shall not, unless he sees good reason to the contrary, take any action under subsection (1) if the undertakings that have not been and are not being violated account for substantially all the imports into Canada of the goods.

Marginal note:Review and renewal of undertaking by President

53. (1) Unless the Tribunal has made an order or finding under subsection 43(1) that the dumping or subsidizing of the goods to which the preliminary determination applies has caused injury or retardation or is threatening to cause injury and that order or finding has not been rescinded under paragraph 76.01(5)(a), subsection 76.02(4), paragraph 76.03(12)(a) or subsection 76.04(1) or 76.1(2) or has not been deemed to be rescinded under subsection 76.03(1), the President shall review the undertaking before the expiry of five years after the date on which it was accepted and before the expiry of each subsequent period, if any, for which it is renewed under this section and if, on the review, the President is satisfied

(a) that the undertaking continues to serve the purpose for which it was intended, and

(b) that the President is not required to terminate it under section 52,

the President shall renew the undertaking for a further period of not more than five years.

Marginal note:Expiry of undertaking

(2) An undertaking expires immediately after the President decides under subsection (1) not to renew it.

Marginal note:Expiration terminates all proceedings

(3) Where an undertaking expires by reason of subsection (2), the expiration terminates all proceedings under this Act respecting the dumping or subsidizing of the goods to which the undertaking relates, unless, in any case where the President has accepted two or more undertakings, the President, for good reason, otherwise directs.

Marginal note:Notice

(4) Where an undertaking is renewed or not renewed pursuant to subsection (1), the President shall cause notice of the decision to renew or not to renew, as the case may be, to be given and published as provided in paragraph 34(1)(a) and filed with the Secretary.

Marginal note:Action on decision referred back by Court

53.1 (1) Where a decision under subsection 53(1) to renew or not to renew an undertaking is set aside and the matter referred back to the President on an application under section 96.1,

(a) the President shall

(i) reconsider the matter and make a new decision, and

(ii) cause notice of the action taken pursuant to subparagraph (i) to be given and published as provided in paragraph 34(1)(a) and filed with the Secretary; and

(b) in the case of a decision not to renew an undertaking, the undertaking shall be deemed to have been renewed on the day on which the order referring the matter back is made and continues in effect until action is taken pursuant to subparagraph (a)(i).

Marginal note:Action on decision referred back by panel

(2) Where a decision under subsection 53(1) to renew or not to renew an undertaking is referred back to the President under subsection 77.015(3) or (4) or 77.019(5), or under subsection 77.15(3) or (4) or 77.19(4),

(a) the President shall

(i) reconsider the decision and confirm, rescind or vary it, and

(ii) cause notice of the action taken pursuant to subparagraph (i) to be given and published as provided in paragraph 34(1)(a) and filed with the Secretary and the Canadian Secretary; and

(b) in the case of a decision not to renew an undertaking, the undertaking shall be deemed to have been renewed on the day on which the order is made and continues in effect until action is taken pursuant to subparagraph (a)(i).

Determinations by Designated Officer

Marginal note:Determination by designated officer

(a) has made a final determination of dumping or subsidizing under subsection 41(1) with respect to any goods, and

(b) has, where applicable, received from the Tribunal an order or finding described in any of sections 4 to 6 with respect to the goods to which the final determination applies,

the President shall cause a designated officer to determine, not later than six months after the date of the order or finding,

(c) in respect of any goods referred to in subsection (2), whether the goods are in fact goods of the same description as goods described in the order or finding,

(d) the normal value and export price of or the amount of subsidy on the goods so released, and

(e) where section 6 or 10 applies in respect of the goods, the amount of the export subsidy on the goods.

Marginal note:Application

(2) Subsection (1) applies only in respect of

(a) goods released on or after the day on which a preliminary determination has been made, and on or before the day on which an undertaking has been accepted, in respect of the goods;

(b) goods described in paragraph 5(b) or 6(b);

(c) goods that are released on or after the day on which an undertaking with respect to those goods has been terminated pursuant to section 52 and on or before the day on which the Tribunal makes an order or finding pursuant to subsection 43(1) with respect to the goods; and

Re-determinations and Appeals

Re-determination by Designated Officer or President

Marginal note:Determination final

56. (1) Where, subsequent to the making of an order or finding of the Tribunal or an order of the Governor in Council imposing a countervailing duty under section 7, any goods are imported into Canada, a determination by a customs officer

(a) as to whether the imported goods are goods of the same description as goods to which the order or finding of the Tribunal or the order of the Governor in Council applies,

(b) of the normal value of or the amount, if any, of the subsidy on any imported goods that are of the same description as goods to which the order or finding of the Tribunal or the order of the Governor in Council applies, and

(c) of the export price of or the amount, if any, of the export subsidy on any imported goods that are of the same description as goods to which the order or finding of the Tribunal applies,

made within thirty days after they were accounted for under subsection 32(1), (3) or (5) of the Customs Act is final and conclusive.

Marginal note:Request for re-determination

(1.01) Notwithstanding subsection (1),

(a) where a determination referred to in that subsection is made in respect of any goods, including goods of a NAFTA country, the importer of the goods may, within ninety days after the making of the determination, make a written request in the prescribed form and manner and accompanied by the prescribed information to a designated officer for a re-determination, if the importer has paid all duties owing on the goods; and

(b) where a determination referred to in that subsection is made in respect of goods of a NAFTA country, the government of that NAFTA country or, if they are of that NAFTA country, the producer, manufacturer or exporter of the goods may make a request as described in paragraph (a), whether or not the importer of the goods has paid all duties owing on the goods.

Marginal note:Suspension of s. (1.1)

(1.02) The operation of subsection (1.1) is suspended during the period in which subsection (1.01) is in force.

Marginal note:Request for re-determination

(1.1) Notwithstanding subsection (1),

(a) where a determination referred to in that subsection is made in respect of any goods, including goods of the United States, the importer of the goods may, within ninety days after the making of the determination, make a written request in the prescribed form and manner and accompanied by the prescribed information to a designated officer for a re-determination, if the importer has paid all duties owing on the goods; and

(b) where a determination referred to in that subsection is made in respect of goods of the United States, the United States government or the producer, manufacturer or exporter of the goods may make a request as described in paragraph (a), whether or not the importer of the goods has paid all duties owing on the goods.

Marginal note:Determination deemed to have been made

(2) Where, in the case of any imported goods referred to in subsection (1), a determination referred to in that subsection that is relevant in the case of those goods is not in fact made in respect of them within the thirty days referred to in that subsection, that determination shall be deemed to have been made

(a) on the thirtieth day after the goods were accounted for; and

(b) in accordance with any representations made by the person accounting for the goods at the time of the accounting.

Marginal note:Review by designated officer

57. Unless the President has previously re-determined under section 59 a determination referred to in subsection 56(1) or (2) or the determination was made in respect of goods released after the initiation of an expedited review under subsection 13.2(3) and before a decision was issued under that subsection, a designated officer may re-determine the determination

(a) in accordance with a request made under subsection 56(1.01) or (1.1); or

(b) if the designated officer deems it advisable, within two years after the determination.

Marginal note:Determination or re-determination final

58. (1) A determination or re-determination by a designated officer under section 55 or 57 with respect to any imported goods is final and conclusive.

Marginal note:Request for re-determination

(1.1) Notwithstanding subsection (1),

(a) where a determination or re-determination referred to in that subsection is made in respect of any goods, including goods of a NAFTA country, the importer of the goods may, within ninety days after the date of the determination or re-determination, make a written request in the prescribed form and manner and accompanied by the prescribed information to the President for a re-determination, if the importer has paid all duties owing on the goods; and

(b) where a determination or re-determination referred to in that subsection is made in respect of goods of a NAFTA country, the government of that NAFTA country or, if they are of that NAFTA country, the producer, manufacturer or exporter of the goods may make a request as described in paragraph (a), whether or not the importer has paid all duties owing on the goods.

Marginal note:Suspension of s. (2)

(1.2) The operation of subsection (2) is suspended during the period in which subsection (1.1) is in force.

Marginal note:Request for re-determination

(2) Notwithstanding subsection (1),

(a) where a determination or re-determination referred to in that subsection is made in respect of any goods, including goods of the United States, the importer of the goods may, within ninety days after the date of the determination or re-determination, make a written request in the prescribed form and manner and accompanied by the prescribed information to the President for a re-determination, if the importer has paid all duties owing on the goods; and

(b) where a determination or re-determination referred to in that subsection is made in respect of goods of the United States, the United States government or the producer, manufacturer or exporter of the goods may make a request as described in paragraph (a), whether or not the importer has paid all duties owing on the goods.

Marginal note:Permissive re-determination

59. (1) Subject to subsection (3), the President may re-determine any determination or re-determination referred to in section 55, 56 or 57 or made under this section in respect of any imported goods

(a) in accordance with a request made pursuant to subsection 58(1.1) or (2);

(b) at any time, if the importer or exporter has made any misrepresentation or committed a fraud in accounting for the goods under subsection 32(1), (3) or (5) of the Customs Act or in obtaining release of the goods;

(c) at any time, if subsection 2(6) or section 26 or 28 applies or at any time becomes applicable in respect of the goods;

(d) at any time, for the purpose of giving effect to a decision of the Tribunal, the Federal Court of Appeal or the Supreme Court of Canada with respect to the goods; and

(e) in any case where the President deems it advisable, within two years after the determination referred to in section 55 or subsection 56(1), as the case may be, if the President has not previously made a re-determination with respect to the goods pursuant to any of paragraphs (a) to (d) or subsection (2) or (3).

Marginal note:Re-determination of re-determination

(1.1) The President may re-determine any re-determination

(a) at any time after a re-determination was made under any of paragraphs (1)(a) to (c) and (e) but before an appeal under section 61 is heard, on the recommendation of the Attorney General of Canada, if the re-determination would reduce duties payable on the goods; and

(b) at any time if the re-determination would be consistent with a decision of the Tribunal, the Federal Court of Appeal or the Supreme Court of Canada, or with a re-determination under paragraph (a), made in respect of other like goods of the same importer or owner imported on or before the date of importation of the goods in respect of which the re-determination is being made.

Marginal note:Permissive re-determination

(2) The President may re-determine any determination or re-determination referred to in section 55, 56 or 57 or made under this section in respect of any imported goods at any time for the purpose of giving effect to a decision of a panel under Part I.1 or II with respect to the goods.

Marginal note:Mandatory re-determination

(3) On a request made under subsection 58(1.1) or (2) to re-determine a determination under section 55 or a re-determination under section 57, the President shall

(a) in the case of a determination under section 55 or a re-determination under paragraph 57(b), re-determine the determination or re-determination within one year after the request under subsection 58(1.1) or (2) was made; and

(b) in the case of a re-determination under paragraph 57(a), re-determine the re-determination within one year after the request under subsection 56(1.01) or (1.1) was made.

Marginal note:Notice of re-determination

(3.1) The President shall cause notice of each re-determination under this section to be forwarded, by registered mail, to the importer and, where the imported goods are goods of a NAFTA country, to the government of that NAFTA country, to such persons as may be prescribed and, if the re-determination gives effect to a decision of a panel under Part I.1, to the Canadian Secretary.

Marginal note:Presumption

(3.2) A notice sent to the government of a NAFTA country pursuant to subsection (3.1) shall be deemed, for the purposes of this Act, to have been received by that government ten days after the day on which it was mailed.

Marginal note:Suspension of ss. (4) and (5)

(3.3) The operation of subsections (4) and (5) is suspended during the period in which subsections (3.1) and (3.2) are in force.

Marginal note:Notice of re-determination

(4) The President shall cause notice of each re-determination under this section to be forwarded, by registered mail, to the importer and, where the imported goods are goods of the United States, to the United States government, to such persons as may be prescribed and, if the re-determination gives effect to a decision of a panel under Part II, to the Canadian Secretary.

Marginal note:Presumption

(5) A notice sent to the United States government pursuant to subsection (4) shall be deemed, for the purposes of this Act, to have been received by that government ten days after the day on which it was mailed.

Marginal note:Effect of re-determination

60. (1) Where, in accordance with section 57 or 59, a re-determination as to whether any goods are goods described in paragraph 56(1)(a) or a re-determination of the normal value or export price of or the amount of subsidy or export subsidy on the goods has been made,

(a) the importer shall pay any additional duty payable with respect to the goods, or

(b) the whole or a part of any duty, or duty and interest paid (other than interest that was paid because duties were not paid when required by subsection 32(5) or section 33 of the Customs Act), in excess of the duties owing in respect of the goods shall be returned to the importer forthwith,

if on the re-determination it is determined that the additional duty is payable or that the whole or the part of the duty paid was not payable, as the case may be.

Marginal note:Decision of President

(2) Notwithstanding subsection 25(2), any duties imposed, by virtue of this Act, on goods sold to an importer in Canada shall be included in the costs referred to in subparagraph 25(1)(c)(i) or (d)(v), as the case may be, where, in any re-determination referred to in subsection (1), the President is of the opinion that

(a) the goods were resold by the person referred to in paragraph 25(1)(c) who purchased the goods from the importer or by a subsequent purchaser at a price that is lower than the total of

(i) the price at which the seller acquired the goods, and

(ii) the administrative, selling and all other costs directly or indirectly attributable to the sale of the goods; and

(b) the export price, determined under section 24, of the goods is unreliable for a reason set out in subparagraph 25(1)(b)(ii).

Marginal note:Notice to be given

60.1 If a determination or a re-determination has been made under section 55, subsection 56(1) or section 57 or 59, notice of the determination or re-determination shall be given without delay to the importer in Canada.

2001, c. 25, s. 97.

Appeal to Canadian International Trade Tribunal

Marginal note:Appeal to the Tribunal

61. (1) Subject to section 77.012 or 77.12, a person who deems himself aggrieved by a re-determination of the President made pursuant to section 59 with respect to any goods may appeal therefrom to the Tribunal by filing a notice of appeal in writing with the President and the Secretary of the Tribunal within ninety days after the day on which the re-determination was made.

Marginal note:Publication of notice of appeal

(2) Notice of the hearing of an appeal under subsection (1) must be published in the Canada Gazette at least twenty-one days before the day of the hearing, and any person who enters an appearance with the Secretary at least seven days before the day of the hearing may be heard on the appeal.

Marginal note:Order or finding of the Tribunal

(3) On any appeal under subsection (1), the Tribunal may make such order or finding as the nature of the matter may require and, without limiting the generality of the foregoing, may declare what duty is payable or that no duty is payable on the goods with respect to which the appeal was taken, and an order, finding or declaration of the Tribunal is final and conclusive subject to further appeal as provided in section 62.

Review of Orders and Findings

Judicial Review

Marginal note:Application for judicial review

76. Subject to subsection 61(3) and Part I.1 or II, an application for judicial review of an order or finding of the Tribunal under this Act may be made to the Federal Court of Appeal on any of the grounds set out in subsection 18.1(4) of the Federal Courts Act.

Review of Orders and Findings by Tribunal

Marginal note:Interim review of orders by Tribunal

76.01 (1) At any time after the making of an order or finding described in any of sections 3 to 6, the Tribunal may, on its own initiative or at the request of the Minister of Finance, the President or any other person or of any government, conduct an interim review of

(a) the order or finding; or

(b) any aspect of the order or finding.

Marginal note:Tribunal may re-hear any matter

(2) In conducting an interim review, the Tribunal may re-hear any matter before deciding it.

Marginal note:Limitation

(3) The Tribunal shall not conduct an interim review at the request of any person or government unless the person or government satisfies the Tribunal that the review is warranted.

Marginal note:Order if interim review not initiated

(4) If the Tribunal decides not to conduct an interim review at the request of a person or government, the Tribunal shall make an order to that effect and give reasons for it, and the Secretary shall forward a copy of the order and the reasons to that person or government and cause notice of the order to be published in the Canada Gazette.

Marginal note:Orders on completion of interim review

(5) The Tribunal, on completion of an interim review

(a) under paragraph (1)(a), shall make an order rescinding the order or finding or continuing it with or without amendment, as the circumstances require, and shall give reasons for making the order; and

(b) under paragraph (1)(b), shall make any order in respect of the order or finding as the circumstances require, and shall give reasons for making the order.

Marginal note:Completion of review

(6) On completion of an interim review, the Secretary shall

(a) forward to the President and any other persons and governments that are specified by the rules of the Tribunal,

(i) without delay after the review is completed, a copy of the order, and

(ii) not later than fifteen days after the date of the order, a copy of the reasons for the order; and

Review on Referral Back

Marginal note:Review of orders by Tribunal on referral back and re-hearing

76.02 (1) If the Tribunal receives notice of action taken under paragraph 41.1(1)(a) or (2)(a) in respect of goods to which an order or finding of the Tribunal, other than an order or finding described in any of sections 3 to 6, applies, the Tribunal may, on its own initiative or at the request of the Minister of Finance, the President or any other person or of any government, review the order or finding and, in conducting the review, may re-hear any matter before deciding it.

Marginal note:Limitation

(2) The Tribunal shall not conduct a review at the request of any person or government unless the person or government satisfies the Tribunal that a review is warranted.

Marginal note:Review of orders by Tribunal on referral back and re-hearing

(3) If an order or finding of the Tribunal is referred back to the Tribunal under subsection 77.015(3) or (4), 77.019(5), 77.15(3) or (4) or 77.19(4), the Tribunal shall review the order or finding and, in conducting the review, may re-hear any matter before deciding it.

Marginal note:Completion of review

(4) On completion of a review, the Tribunal shall confirm the order or finding or rescind it and make any other order or finding with respect to the goods to which the order or finding under review applies as the nature of the matter may require, shall give reasons for the decision and, if it makes another order or finding, shall declare to what goods, including, if applicable, from what supplier and from what country of export, the order or finding applies.

Marginal note:Notice

(5) On completion of a review, the Secretary shall

(a) forward to the President and the other persons and governments that are specified by the rules of the Tribunal and, in the case of a review under subsection (3), the Canadian Secretary,

(i) without delay after the review is completed, a copy of the order or finding made under subsection (4), and

(ii) not later than fifteen days after the completion of the review, a copy of the reasons for the decision; and

(b) cause notice of the order or finding to be published in the Canada Gazette.

Expiry Review

Marginal note:Order or finding deemed to be rescinded

76.03 (1) If the Tribunal has not initiated an expiry review under subsection (3) with respect to an order or finding described in any of sections 3 to 6 before the expiry of five years after whichever of the following days is applicable, the order or finding is deemed to have been rescinded as of the expiry of the five years:

(a) if no order continuing the order or finding has been made under paragraph (12)(b), the day on which the order or finding was made; and

(b) if one or more orders continuing the order or finding have been made under paragraph (12)(b), the day on which the last order was made.

Marginal note:Publication of notice

(2) If an order or finding is to be deemed rescinded under subsection (1), the Secretary shall, not later than ten months before the expiry date of the order or finding under that subsection, cause to be published in the Canada Gazette a notice of expiry setting out the information specified in the rules of the Tribunal.

Marginal note:Review of orders by Tribunal

(3) The Tribunal may initiate an expiry review of an order or finding described in any of sections 3 to 6

(a) on its own initiative; or

(b) at the request of the Minister of Finance, the President or any other person or of any government, if the request is made within the period specified in the notice of expiry.

Marginal note:Limitation

(4) The Tribunal shall not initiate an expiry review at the request of any person or government unless the person or government satisfies the Tribunal that a review is warranted.

Marginal note:Order of refusal

(5) If the Tribunal decides not to initiate an expiry review at the request of a person or government, the Tribunal shall make an order to that effect and give reasons for it, and the Secretary shall forward a copy of the order and the reasons to that person or government and cause notice of the order to be published in the Canada Gazette.

Marginal note:Notice

(6) If the Tribunal decides to initiate an expiry review, the Secretary shall without delay

(a) cause notice of the Tribunal’s decision to be given to

(i) the President, and

(ii) all other persons and governments specified in the rules of the Tribunal;

(b) provide the President with a copy of the administrative record on which it based its decision to initiate a review under subsection (3); and

(c) cause to be published in the Canada Gazette notice of initiation of the review that includes the information set out in the rules of the Tribunal.

Marginal note:If review initiated

(7) If the Tribunal decides to initiate an expiry review, the President shall

(a) within one hundred and twenty days after receiving notice under subparagraph (6)(a)(i), determine whether the expiry of the order or finding in respect of goods of a country or countries is likely to result in the continuation or resumption of dumping or subsidizing of the goods; and

(b) provide the Secretary with notice of the determination without delay after making it.

Marginal note:Consequences of President’s determination

(8) If the President determines that the expiry of the order or finding in respect of any goods is unlikely to result in a continuation or resumption of dumping or subsidizing, the Tribunal shall not take those goods into account in assessing the cumulative effect of dumping or subsidizing under subsection (11).

Marginal note:Consequences of President’s determination

(9) If the President determines that the expiry of the order or finding in respect of any goods is likely to result in a continuation or resumption of dumping or subsidizing, the President shall without delay provide the Tribunal with any information and material with respect to the matter that is required under the rules of the Tribunal.

Marginal note:Tribunal’s determination

(10) If the President makes a determination described in subsection (9), the Tribunal shall determine whether the expiry of the order or finding in respect of the goods referred to in that subsection is likely to result in injury or retardation.

Marginal note:Assessment of cumulative effect

(11) For the purpose of subsection (10), the Tribunal shall make an assessment of the cumulative effect of the dumping or subsidizing of goods to which the determination of the President described in subsection (9) applies that are imported into Canada from more than one country if the Tribunal is satisfied that an assessment of the cumulative effect would be appropriate taking into account the conditions of competition between goods to which the order or finding applies that are imported into Canada from any of those countries and

(a) goods to which the order or finding applies that are imported into Canada from any other of those countries; or

(b) like goods of domestic producers.

Marginal note:Order of Tribunal

(12) The Tribunal shall make an order

(a) rescinding the order or finding in respect of goods

(i) referred to in subsection (8), or

(ii) in respect of which it determines that the expiry of the order or finding is unlikely to result in injury or retardation; or

(b) continuing the order or finding, with or without amendment, in respect of goods which it determines that the expiry of the order or finding is likely to result in injury or retardation.

Marginal note:Separate order or finding

76.04 (1) If a review under section 76.01, 76.02 or 76.03 involves goods of more than one NAFTA country, or of one or more NAFTA countries and goods of one or more other countries, and the Tribunal makes another order or finding under any of those sections, the Tribunal shall make a separate order or finding under that section with respect to the goods of each NAFTA country.

Marginal note:Suspension of subsection (3)

(2) The operation of subsection (3) is suspended during the period in which subsection (1) is in force.

Marginal note:Separate order or finding

(3) If a review under section 76.01, 76.02 or 76.03 involves goods of the United States as well as goods of other countries and the Tribunal makes another order or finding under any of those sections, the Tribunal shall make a separate order or finding under that section with respect to the goods of the United States.

1999, c. 12, s. 36.

Marginal note:Request by Minister of Finance for review

76.1 (1) Where at any time after the issuance, by the Dispute Settlement Body established pursuant to Article 2 of Annex 2 to the WTO Agreement, of a recommendation or ruling, the Minister of Finance considers it necessary to do so, having regard to the recommendation or ruling, the Minister of Finance may request that

(a) the President review any decision, determination or re-determination or any portion of a decision, determination or re-determination made under this Act; or

(b) the Tribunal review any order or finding described in any of sections 3 to 6, or any portion of such an order or finding and, in making the review, the Tribunal may re-hear any matter before deciding it.

Marginal note:Result of review

(2) On completion of a review under subsection (1), the President or the Tribunal, as the case may be, shall

(a) continue the decision, determination, re-determination, order or finding without amendment;

(b) continue the decision, determination, re-determination, order or finding with any amendments that the President or the Tribunal, as the case may be, considers necessary; or

(c) rescind the decision, determination, re-determination, order or finding and make any other decision, determination, re-determination, order or finding that the President or the Tribunal, as the case may be, considers necessary.

Marginal note:Reasons

(3) If a decision, determination, re-determination, order or finding is continued under paragraph (2)(a) or (b) or made under paragraph (2)(c), the President or the Tribunal, as the case may be, shall give reasons for doing so and shall set out to what goods, including, if practicable, the name of the supplier and the country of export, the decision, determination, re-determination, order or finding applies.

Marginal note:Notification of Minister of Finance

(4) The President or the Tribunal, as the case may be, shall notify the Minister of Finance of any decision, determination, re-determination, order or finding continued under paragraph (2)(a) or (b) or made under paragraph (2)(c).

Marginal note:Deeming

(5) Any decision, determination or re-determination continued by the President under paragraph (2)(b) or made by the President under paragraph (2)(c) is deemed to have been made under

(a) paragraph 41(1)(a), if the decision or determination was continued or made as a result of a review under this section of a final determination of the President under that paragraph;

(b) paragraph 41(1)(b), if the decision or determination was continued or made as a result of a review under this section of a decision of the President under that paragraph to cause an investigation to be terminated;

(c) subsection 53(1), if the decision or determination was continued or made as a result of a review under this section of a decision of the President under that subsection to renew or not to renew an undertaking; or

(d) subsection 59(1), (1.1) or (2), if the re-determination was continued or made as a result of a review under this section of a re-determination by the President under either of those subsections.

Rescission of Orders and Findings

Marginal note:Goods of Chile

77. If the Tribunal has made an order or finding resulting in the levying of anti-dumping duties in respect of goods of Chile that are subsequently exempted from the application of this Act by regulations made under section 14, the Tribunal shall rescind the order or finding to the extent that it relates to the dumping of those goods.

(b) a decision of the President under paragraph 41(1)(b) to cause an investigation to be terminated,

(c) an order or finding of the Tribunal under subsection 43(1),

(d) a decision of the President under subsection 53(1) to renew or not to renew an undertaking,

(e) a re-determination of the President under subsection 59(1),

(f) a re-determination of the President under subsection 59(3),

(f.1) a re-determination of the President under subsection 59(1.1),

(g) an order of the Tribunal under subsection 76.01(4) or 76.03(5),

(h) an order of the Tribunal under subsection 76.01(5) or 76.03(12),

(i) an order or finding of the Tribunal under subsection 76.02(4) respecting a review under subsection 76.02(1),

(i.1) an order or finding of the Tribunal under paragraph 76.1(2)(b) or (c), or

(j) an order or finding of the Tribunal under subsection 91(3)

in so far as it applies to or is made in respect of particular goods of a NAFTA country, but does not include any such determination, re-determination, decision, order or finding that is made for the purpose of giving effect to a decision of the Federal Court of Appeal or the Supreme Court of Canada relating to those goods;

“Minister”

« ministre »

“Minister” means the Minister for International Trade;

“NAFTA country Secretary”

« secrétaire national »

“NAFTA country Secretary” means the secretary of the national Section of the Secretariat provided for in Article 2002 of the North American Free Trade Agreement;

“panel”

« groupe spécial »

“panel” means a panel appointed pursuant to section 77.013;

“rules”

« règles »

“rules” means the rules of procedure, as amended from time to time, made pursuant to Chapter Nineteen of the North American Free Trade Agreement;

“special committee”

« comité spécial »

“special committee” means a special committee appointed pursuant to subsection 77.023(2).

Marginal note:Inconsistency

(2) In the event of any inconsistency between the provisions of this Part and the provisions of the Federal Courts Act, the provisions of this Part prevail to the extent of the inconsistency.

Request for Review

Marginal note:Request for review of definitive decision

77.011 (1) The Minister or the government of a NAFTA country, the goods of which are the subject of a definitive decision, may request, in accordance with paragraph 4 of Article 1904 of the North American Free Trade Agreement, that the definitive decision, in so far as it applies to goods of that NAFTA country, be reviewed by a panel.

Marginal note:Idem

(2) Any person who, but for section 77.012, would be entitled to apply under the Federal Courts Act or section 96.1 of this Act, or to appeal under section 61 of this Act, in respect of a definitive decision may, in accordance with paragraph 4 of Article 1904 of the North American Free Trade Agreement, file with the Canadian Secretary a request that the definitive decision be reviewed by a panel.

Marginal note:Deeming

(3) A request made under subsection (2) shall be deemed to be a request by the Minister for binational panel review within the meaning of paragraph 4 of Article 1904 of the North American Free Trade Agreement.

Marginal note:Limitation period

(4) A request under subsection (1) or (2) may only be made within thirty days after the day on which notice of the definitive decision is published in the Canada Gazette or, in the case of a re-determination of the President under subsection 59(1) or (3), within thirty days after the day on which notice of the re-determination is received by the government of a NAFTA country.

Marginal note:Grounds for request

(5) A request under subsection (1) or (2) for the review of a definitive decision may be made only on a ground set forth in subsection 18.1(4) of the Federal Courts Act.

Marginal note:Notification of request for review

(6) On receiving a request from the government of a NAFTA country under subsection (1) or on receiving a request under subsection (2), the Canadian Secretary shall notify the Minister and the appropriate NAFTA country Secretary of the request and the day on which it was received by the Canadian Secretary.

Marginal note:No application or appeal

(7) Where a request is made under subsection (1) or (2) for the review of a definitive decision by a panel, no person or government may apply under the Federal Courts Act or section 96.1 of this Act or appeal under section 61 of this Act in respect of the decision.

Marginal note:Applications and appeals

77.012 (1) No person or government may apply under the Federal Courts Act or section 96.1 of this Act or appeal under section 61 of this Act in respect of a definitive decision

(a) before the expiry of the period of thirty days after

(i) the day on which the definitive decision is published in the Canada Gazette, or

(ii) in the case of a re-determination of the President under subsection 59(1), (1.1) or (3), the day on which notice of the re-determination is received by the government of a NAFTA country; and

(b) unless the person or government has, within twenty days after the day on which that period commences, given notice of the intention to make such an application or appeal in writing to the Canadian Secretary and the appropriate NAFTA country Secretary and in the prescribed manner to any other person who, but for this section, would be entitled to so apply or appeal.

Marginal note:Limitation period extended

(2) For the purpose of permitting a government or person to apply under the Federal Courts Act or section 96.1 of this Act in respect of a definitive decision after the expiration of the limitation period established by paragraph 4 of Article 1904 of the North American Free Trade Agreement for requesting a review of the decision, the limitation period referred to in subsection 18.1(2) of the Federal Courts Act and subsection 96.1(3) of this Act is extended by ten days and shall be calculated as commencing on the day on which the limitation period established by that paragraph commences.

Establishment of Panels

Marginal note:Appointment of panel

77.013 (1) On a request under section 77.011 for the review of a definitive decision by a panel, a panel shall be appointed for that purpose in accordance with paragraphs 1 to 4 of Annex 1901.2 to Chapter Nineteen of the North American Free Trade Agreement and any regulations made in connection therewith.

Marginal note:Judges may be appointed

(2) Judges of any superior court in Canada and persons who are retired judges of any superior court in Canada are eligible to be appointed to a panel.

Marginal note:Single panel

(3) Where a request is made for the review of a final determination of the President under paragraph 41(1)(a) that applies to or is made in respect of particular goods of a NAFTA country and another request is made for the review of an order or finding of the Tribunal under subsection 43(1) that applies to or is made in respect of those goods, one panel may, with the consent of the Minister and the government of that NAFTA country, be appointed to review the final determination and the order or finding.

Marginal note:Administrative record forwarded

77.014 On the appointment of the members of a panel to review a definitive decision, the appropriate authority shall cause a copy of the administrative record to be forwarded in accordance with the rules.

1993, c. 44, s. 218.

Review by Panel

Marginal note:Conduct of review

77.015 (1) A panel shall conduct a review of a definitive decision in accordance with Chapter Nineteen of the North American Free Trade Agreement and the rules.

Marginal note:Powers of panel

(2) A panel has such powers, rights and privileges as are conferred on it by the regulations.

Marginal note:Disposition after review

(3) On completion of the review of a definitive decision, a panel shall determine whether the grounds on which the review was requested have been established and shall make an order confirming the decision or referring the matter back to the appropriate authority for reconsideration within the period specified by the panel.

Marginal note:Review of action of appropriate authority

(4) A panel may, on its own initiative or on a request made in accordance with the rules, review the action taken by the appropriate authority pursuant to an order under subsection (3) and make a further order as described in that subsection within ninety days after the day on which the Canadian Secretary receives notice of the action.

Marginal note:Decision

(5) A decision of a panel shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the panel, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made pursuant to subsection (3) or (4) to the Minister, the government of the NAFTA country involved, the appropriate authority and any other person who was heard in the review and shall cause notice of the decision to be published in the Canada Gazette.

1993, c. 44, s. 218.

Action on Decision of Panel

Marginal note:Action by appropriate authority

77.016 (1) Where a panel makes an order under subsection 77.015(3) or (4) or takes any action under subsection 77.019(5) referring a matter back to the appropriate authority for reconsideration, the appropriate authority shall, within the period specified by the panel, take action under this Act not inconsistent with the decision of the panel.

Marginal note:Appropriate authority not required to act twice

(2) Notwithstanding any other provision of this Act, an appropriate authority is not required to act on an order under subsection 77.015(4), unless it requires the authority to take action that is different from that taken by the authority under the order under subsection 77.015(3).

1993, c. 44, s. 218.

Extraordinary Challenge Proceeding

Marginal note:Request for extraordinary challenge proceeding

77.017 (1) Within the period after a panel makes an order under subsection 77.015(3) or (4) prescribed by the rules, the Minister or the government of the NAFTA country to which the order relates may request, in writing to the Canadian Secretary, that an extraordinary challenge proceeding be commenced with respect to the order.

Marginal note:Ground for request

(2) A request for an extraordinary challenge proceeding may be made only on a ground set forth in paragraph 13 of Article 1904 of the North American Free Trade Agreement.

(3) On receiving a request under this section made by the Minister, the Canadian Secretary shall notify the appropriate NAFTA country Secretary of the request and the day on which it was received by the Canadian Secretary, and on receiving a request under this section made by the government of a NAFTA country, the Canadian Secretary shall notify the Minister of the request and the day on which it was received by the Canadian Secretary.

1993, c. 44, s. 218.

Marginal note:Appointment of extraordinary challenge committee

77.018 On a request under section 77.017 for an extraordinary challenge proceeding, an extraordinary challenge committee shall be appointed for that purpose in accordance with paragraph 1 of Annex 1904.13 to Chapter Nineteen of the North American Free Trade Agreement and any regulations made in connection therewith.

1993, c. 44, s. 218.

Marginal note:Conduct of extraordinary challenge proceeding

77.019 (1) A committee shall conduct an extraordinary challenge proceeding and make a decision in accordance with Annex 1904.13 to Chapter Nineteen of the North American Free Trade Agreement and the rules.

Marginal note:Powers of committee

(2) A committee has such powers, rights and privileges as are conferred on it by the regulations.

Marginal note:Where no grounds

(3) Where a committee conducting an extraordinary challenge proceeding determines that the grounds in the request for the proceeding are not established, the committee shall deny the request, and the decision of the panel in respect of which the request was made shall stand affirmed.

Marginal note:New panel

(4) Where an order of a panel is set aside by a committee, a new panel shall, in accordance with this Part, be appointed and conduct a review of the definitive decision that was the subject of that order.

Marginal note:Action by panel

(5) Where an order of a panel is referred back to the panel by a committee, the panel shall take action not inconsistent with the decision of the committee.

Marginal note:Decision

(6) A decision of a committee shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the committee, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made by the committee to the Minister, the government of the NAFTA country involved, the appropriate authority and any other person who was heard in the proceeding and shall cause notice of the decision to be published in the Canada Gazette.

1993, c. 44, s. 218.

Marginal note:Orders and decisions final

77.02 (1) Subject to subsection 77.015(4) and section 77.019, an order or decision of a panel or committee is final and binding and is not subject to appeal.

Marginal note:No review

(2) Subject to subsection 77.015(4) and section 77.019, no order, decision or proceeding of a panel or committee made or carried on under, or purporting to be made or carried on under, this Act shall be

(a) questioned, reviewed, set aside, removed, prohibited or restrained, or

(b) made the subject of any proceedings in, or any process or order of, any court, whether by way of or in the nature of injunction, certiorari, prohibition, quo warranto, declaration or otherwise,

on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the panel or committee to make or carry on or that, in the course of any proceeding, the panel or committee for any reason exceeded or lost jurisdiction.

Marginal note:No references

(3) Subsection 18.3(1) of the Federal Courts Act does not apply to a panel, committee or special committee.

Members

Marginal note:Code of conduct

77.021 (1) Every member of a panel, committee or special committee shall comply with the code of conduct, as amended from time to time, established pursuant to Article 1909 of the North American Free Trade Agreement.

(2) Every member of a panel and every prescribed person shall sign and comply with a disclosure undertaking, in the prescribed form, respecting the disclosure and use of confidential, personal, business proprietary and other privileged or prescribed information made available to the member or person in proceedings under this Part.

Marginal note:Immunity

(3) Subject to section 77.034, no action or other proceeding lies or shall be commenced against a member of a panel for or in respect of anything done or omitted to be done, or purported to be done or omitted to be done, under this Part.

Marginal note:Remuneration and expenses of panel members

77.022 Every member of a panel shall be paid such remuneration and is entitled to such travel and living expenses incurred in the performance of the member’s duties under this Part as are fixed by the Free Trade Commission established pursuant to Article 2001 of the North American Free Trade Agreement.

1993, c. 44, s. 218.

Review by Special Committee

Marginal note:Request for review

77.023 (1) A request for a review by a special committee may be made to the Canadian Secretary by the government of a NAFTA country only with respect to an allegation referred to in Article 1905.1 of the North American Free Trade Agreement.

Marginal note:Appointment of special committee

(2) On a request for a review referred to in subsection (1), a special committee shall be appointed for that purpose in accordance with Annex 1904.13 of the North American Free Trade Agreement and any regulations made in connection therewith.

1993, c. 44, s. 218.

Marginal note:Stay of panel reviews and committee proceedings

77.024 (1) Subject to subsection (2), where a special committee makes an affirmative finding against a NAFTA country pursuant to a request made by Canada in respect of an allegation referred to in Article 1905.1 of the North American Free Trade Agreement, the Minister shall stay all

(a) panel reviews under section 77.011, and

(b) committee proceedings under section 77.017

that were requested by the government or a person of that NAFTA country after the date on which consultations were requested under Article 1905.1 of the North American Free Trade Agreement.

Marginal note:Exception

(2) Subsection (1) does not apply in respect of a panel review or committee proceeding that was requested more than one hundred and fifty days prior to the affirmative finding by the special committee.

1993, c. 44, s. 218.

Marginal note:Stay on request

77.025 Where a special committee makes an affirmative finding against Canada pursuant to a request made by the government of a NAFTA country, the government of that NAFTA country may request that the Minister stay all

(a) panel reviews under section 77.011, and

(b) committee proceedings under section 77.017

that were requested by the government or a person of that NAFTA country, and where such a request for a stay is made the Minister shall stay all such reviews and proceedings.

1993, c. 44, s. 218.

Marginal note:When stay becomes effective

77.026 Where the Minister stays panel reviews and committee proceedings, the stay shall become effective

(a) where the stay is made under section 77.024, on the day following the date on which the special committee made the affirmative finding; and

(b) where the stay is made under section 77.025, on the day following the date on which the request for the stay was made.

1993, c. 44, s. 218.

Marginal note:Suspension of time periods

77.027 Where a special committee makes an affirmative finding against Canada or a NAFTA country pursuant to a request made by the government of a NAFTA country or Canada in respect of an allegation referred to in Article 1905.1 of the North American Free Trade Agreement,

(a) the time periods provided for in subsection 77.011(4) for requesting a panel review and in subsection 77.017(1) for requesting committee proceedings in respect of goods of that NAFTA country, and

(b) the time periods provided in the Federal Courts Act, and in section 61 and subsection 96.1(3) of this Act, for appealing, or for requesting judicial review of, any determination, re-determination, decision or order referred to in the definition “definitive decision” in subsection 77.01(1) in respect of goods of that NAFTA country,

shall not run unless and until resumed in accordance with subsection 77.033.

Marginal note:Suspension of panel process

77.028 (1) The Minister may suspend the operation of Article 1904 of the North American Free Trade Agreement with respect to goods of a NAFTA country

(a) at any time after the expiration of sixty days, but not later than ninety days, following an affirmative finding against the NAFTA country by a special committee requested by Canada under Article 1905.2 of the North American Free Trade Agreement; and

(b) at any time where the government of the NAFTA country has suspended the operation of Article 1904 of the North American Free Trade Agreement with respect to goods of Canada following an affirmative finding by a special committee against Canada.

Marginal note:Notice of suspension

(2) Where the Minister suspends the operation of Article 1904 of the North American Free Trade Agreement under subsection (1) with respect to goods of a NAFTA country, the Canadian Secretary shall forward a written notice of the suspension to the NAFTA country Secretary of that NAFTA country and shall publish a notice of the suspension in the Canada Gazette.

1993, c. 44, s. 218.

Marginal note:Suspension of benefits

77.029 (1) The Governor in Council, on the recommendation of the Minister of Finance and the Minister, may, by order, at any time after the expiration of sixty days, but in no case later than ninety days, following an affirmative finding against a NAFTA country by a special committee requested by Canada under Article 1905.2 of the North American Free Trade Agreement, suspend the application to that NAFTA country of such benefits under the North American Free Trade Agreement as the Governor in Council considers appropriate in the circumstances.

Marginal note:Powers

(2) For the purpose of suspending the application to a NAFTA country of benefits under subsection (1), the Governor in Council may do any one or more of the following things:

(a) suspend rights or privileges granted by Canada to that country or to goods, service providers, suppliers, investors or investments of that country under the North American Free Trade Agreement or an Act of Parliament;

(b) modify or suspend the application of any federal law with respect to that country or to goods, service providers, suppliers, investors or investments of that country;

(c) extend the application of any federal law to that country or to goods, service providers, suppliers, investors or investments of that country; and

(d) generally take such action as the Governor in Council considers necessary for that purpose.

Marginal note:Period of order

(3) Unless revoked, an order made under subsection (1) shall have effect for such period as is specified in the order.

Marginal note:Definitions

(4) In this section, “federal law” means the whole or any portion of any Act of Parliament or regulation, order or other instrument issued, made or established in the exercise of a power conferred by or under an Act of Parliament.

Marginal note:Order not a statutory instrument

Marginal note:Action consistent with determination

(6) Whenever, after an order is made under subsection (1), the special committee referred to in that subsection makes a determination pursuant to paragraph 1905.10(a) of the North American Free Trade Agreement, the Governor in Council shall take action consistent with that determination.

1993, c. 44, s. 218.

Marginal note:Only one section applies

77.03 Where the operation of Article 1904 of the North American Free Trade Agreement is suspended under section 77.028 in respect of a NAFTA country, benefits under Article 1905.2 of the North American Free Trade Agreement may not be suspended under section 77.029 in respect of that NAFTA country, and where benefits under Article 1905.2 of the North American Free Trade Agreement are suspended under section 77.029 in respect of a NAFTA country, the operation of Article 1904 of the North American Free Trade Agreement may not be suspended under section 77.028 in respect of that NAFTA country.

1993, c. 44, s. 218.

Marginal note:Referral to Federal Court of Appeal

77.031 (1) Where the Minister suspends the operation of Article 1904 of the North American Free Trade Agreement under paragraph 77.028(1)(a) and

(a) where any panel review is stayed under subsection 77.024(1), the Minister, the government of the NAFTA country, or any party to the stayed panel review may, within thirty days after the date of the suspension, apply to the Federal Court of Appeal for review of the definitive decision that has been the subject of the panel review, on any grounds set out in subsection 18.1(4) of the Federal Courts Act; or

(b) where any committee proceeding is stayed under subsection 77.024(1), the Minister, the government of the NAFTA country, or any party to the stayed committee proceeding may, within thirty days after the date of the suspension, apply to the Federal Court of Appeal for review of the definitive decision that has been the subject of the original panel decision reviewed by the committee, on any grounds set out in subsection 18.1(4) of the Federal Courts Act.

Marginal note:Idem

(2) Where the government of a NAFTA country suspends the operation of Article 1904 of the North American Free Trade Agreement with respect to goods of Canada under Article 1905.8 of the North American Free Trade Agreement and

(a) where any panel review is stayed under section 77.025, the government of the NAFTA country, or persons of that NAFTA country who were party to the stayed panel review may, within thirty days after the date of the suspension, apply to the Federal Court of Appeal for review of the definitive decision that has been the subject of the panel review, on any grounds set out in subsection 18.1(4) of the Federal Courts Act; or

(b) where any committee proceeding is stayed under section 77.025, the government of the NAFTA country, or persons of that NAFTA country who were party to the stayed committee proceeding may, within thirty days after the date of the suspension, apply to the Federal Court of Appeal for review of the definitive decision that has been the subject of the original panel decision reviewed by the committee, on any grounds set out in subsection 18.1(4) of the Federal Courts Act.

Marginal note:Idem

(3) For the purposes of subsections (1) and (2), where any application has been made to the Federal Court of Appeal for the review of any definitive decision, that definitive decision may not be subsequently reviewed by a panel or committee if the suspension of Article 1904 is terminated pursuant to section 77.032.

Marginal note:Termination of suspension

77.032 The Minister shall terminate any suspension effected under subsection 77.028(1) if a special committee reconvened pursuant to Article 1905.10 of the North American Free Trade Agreement determines that the problems in respect of which the special committee’s affirmative finding was based have been corrected.

1993, c. 44, s. 218.

Marginal note:Resumption

77.033 All panel reviews and committee proceedings stayed under subsection 77.024(1) or section 77.025 and any running of the time periods suspended under section 77.027 shall resume

(a) where the operation of Article 1904 of the North American Free Trade Agreement is not suspended under paragraph 77.028(1)(a), on the expiration of ninety days after the date on which an affirmative finding was made or on such earlier day as the Minister may specify; or

(b) where benefits are suspended under section 77.029.

1993, c. 44, s. 218.

Offence

Marginal note:Offence

77.034 (1) Every person commits an offence who contravenes or fails to comply with

(a) a disclosure undertaking under subsection 77.021(2);

(b) the rules respecting the disclosure and use of confidential, personal, business proprietary or other privileged or prescribed information; or

(c) a disclosure order or protective order covering personal, business proprietary or other privileged or prescribed information made under the law of any NAFTA country giving effect to the North American Free Trade Agreement.

Marginal note:Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to a fine not exceeding one million dollars; or

(b) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding one hundred thousand dollars.

Marginal note:Consent

(3) No proceedings for an offence under this section shall be instituted without the consent in writing of the Attorney General of Canada.

1993, c. 44, s. 218.

Regulations

Marginal note:Regulations

77.035 The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations

(a) conferring on a panel, committee or special committee such powers, rights and privileges as the Governor in Council deems necessary for giving effect to Chapter Nineteen of the North American Free Trade Agreement and the rules, including powers, rights and privileges of a superior court of record;

(b) authorizing a designated officer, or an officer of a designated class of officers, employed in or occupying a position of responsibility in the service of Her Majesty to perform duties or functions of the Minister under this Part;

(c) for carrying out and giving effect to paragraphs 1 to 4 of Annex 1901.2, and paragraph 1 of Annex 1904.13, of Chapter Nineteen of the North American Free Trade Agreement; and

(d) generally for carrying out the purposes and provisions of this Part.

77.036 The rules, the code of conduct established pursuant to Article 1909 of the North American Free Trade Agreement and any amendments made to the rules or code shall be published in the Canada Gazette.

Application of Acts

Marginal note:Application

(b) of any other Act of Parliament respecting the imposition of anti-dumping or countervailing duties, or

(c) amending a provision of an Act of Parliament providing for judicial review of a definitive decision or setting forth the grounds for such a review

that comes into force after the coming into force of this section shall be applied in respect of goods of a NAFTA country, unless it is expressly declared by an Act of Parliament that the provision applies in respect of goods of that NAFTA country.

1993, c. 44, s. 218.

Marginal note:Suspension of Part II

77.038 The operation of Part II is suspended during the period in which this Part is in force.

(b) a decision of the President under paragraph 41(1)(b) to cause an investigation to be terminated,

(c) an order or finding of the Tribunal under subsection 43(1),

(d) a decision of the President under subsection 53(1) to renew or not to renew an undertaking,

(e) a re-determination of the President under subsection 59(1),

(f) a re-determination of the President under subsection 59(3),

(f.1) a re-determination of the President under subsection 59(1.1),

(g) an order of the Tribunal under subsection 76.01(4) or 76.03(5),

(h) an order of the Tribunal under subsection 76.01(5) or 76.03(12),

(i) an order or finding of the Tribunal under subsection 76.02(4) respecting a review under subsection 76.02(1),

(i.1) an order or finding of the Tribunal under paragraph 76.1(2)(b) or (c), or

(j) an order or finding of the Tribunal under subsection 91(3)

that applies to or in respect of particular goods of the United States, but does not include any such determination, re-determination, decision, order or finding that is made for the purpose of giving effect to a decision of the Federal Court of Appeal or the Supreme Court of Canada relating to those goods;

“Minister”

« ministre »

“Minister” means the Minister for International Trade;

“panel”

« groupe spécial »

“panel” means a panel appointed pursuant to section 77.13;

“rules”

« règles »

“rules” means the rules of procedure, as amended from time to time, made pursuant to Chapter Nineteen of the Free Trade Agreement;

“Secretariat”

« Secrétariat »

“Secretariat” means the Canadian Secretariat established by section 77.23.

Marginal note:Inconsistency

(2) In the event of any inconsistency between the provisions of this Part and the provisions of the Federal Courts Act, the provisions of this Part prevail to the extent of the inconsistency.

Request for Review

Marginal note:Request for review of definitive decision

77.11 (1) The Minister or the United States government may request, in accordance with paragraph 4 of Article 1904 of the Free Trade Agreement, that a definitive decision be reviewed by a panel.

Marginal note:Idem

(2) On a request made to the Canadian Secretary by any person who, but for section 77.12, would be entitled to apply under section 28 of the Federal Courts Act or section 96.1 of this Act or to appeal under section 61 of this Act in respect of a definitive decision, the Minister shall request, in accordance with paragraph 4 of Article 1904 of the Free Trade Agreement, that the definitive decision be reviewed by a panel.

Marginal note:Limitation period

(3) No request shall be made to the Canadian Secretary under subsection (2) more than twenty-five days after the day on which notice of the definitive decision is published in the Canada Gazette or, in the case of a re-determination of the President under subsection 59(1) or (3), the day on which notice of the re-determination is received by the United States government.

Marginal note:Grounds for request

(4) A request by the Minister for the review of a definitive decision may be made only on a ground set forth in subsection 28(1) of the Federal Courts Act.

Marginal note:Notification of request for review

(5) On receiving a request under this section made by the Minister, the Canadian Secretary shall notify the American Secretary of the request and the day on which it was received by the Canadian Secretary, and on receiving a request under this section made by the United States government, the Canadian Secretary shall notify the Minister of the request and the day on which it was received by the Canadian Secretary.

Marginal note:No application or appeal

(6) Where a request is made by the Minister or the United States government for the review of a definitive decision by a panel, no person or government may apply under section 18 or 28 of the Federal Courts Act or section 96.1 of this Act or appeal under section 61 of this Act in respect of the decision.

Marginal note:Applications and appeals

77.12 (1) No person or government may apply under section 18 or 28 of the Federal Courts Act or section 96.1 of this Act or appeal under section 61 of this Act in respect of a definitive decision

(a) before the expiry of the period of thirty days after

(i) the day on which the definitive decision is published in the Canada Gazette, or

(ii) in the case of a re-determination of the President under subsection 59(1), (1.1) or (3), the day on which notice of the re-determination is received by the United States; and

(b) unless the person or government has, within twenty days after the day on which that period commences, given notice of the intention to make such an application or appeal in writing to the Canadian Secretary and the American Secretary and in the prescribed manner to any other person who, but for this section, would be entitled to so apply or appeal.

Marginal note:Limitation period extended

(2) For the purpose of permitting a government or person to apply under section 28 of the Federal Courts Act or section 96.1 of this Act in respect of a definitive decision after the expiration of the limitation period established by paragraph 4 of Article 1904 of the Free Trade Agreement for requesting a review of the decision, the ten day limitation period referred to in subsection 28(2) of the Federal Courts Act and subsection 96.1(3) of this Act is extended by thirty days and shall be calculated as commencing on the day on which the limitation period established by that paragraph commences.

Establishment of Panels

Marginal note:Appointment of panel

77.13 (1) On a request under section 77.11 for the review of a definitive decision by a panel, a panel shall be appointed for that purpose in accordance with paragraphs 1 to 4 of Annex 1901.2 to Chapter Nineteen of the Free Trade Agreement and any regulations made in connection therewith.

Marginal note:Single panel

(2) Where a request is made for the review of a final determination of the President under paragraph 41(1)(a) that applies to or in respect of particular goods of the United States and another request is made for the review of an order or finding of the Tribunal under subsection 43(1) that applies to or in respect of those goods, one panel may, with the consent of the Minister and the United States government, be appointed to review the final determination and the order or finding.

Marginal note:Administrative record forwarded

77.14 On the appointment of the members of a panel to review a definitive decision, the appropriate authority shall cause a copy of the administrative record to be forwarded in accordance with the rules.

1988, c. 65, s. 42.

Review by Panel

Marginal note:Conduct of review

77.15 (1) A panel shall conduct a review of a definitive decision in accordance with Chapter Nineteen of the Free Trade Agreement and the rules.

Marginal note:Powers of panel

(2) A panel has such powers, rights and privileges as are conferred on it by the regulations.

Marginal note:Disposition after review

(3) On completion of the review of a definitive decision, a panel shall determine whether the grounds on which the review was requested have been established and shall make an order confirming the decision or referring the matter back to the appropriate authority for reconsideration within the period specified by the panel.

Marginal note:Review of action of appropriate authority

(4) A panel may, on its own initiative or on a request made in accordance with the rules, review the action taken by the appropriate authority pursuant to an order under subsection (3) and make a further order as described in that subsection within ninety days after the day on which the Canadian Secretary receives notice of the action.

Marginal note:Decision

(5) A decision of a panel shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the panel, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made pursuant to subsection (3) or (4) to the Minister, the United States government, the appropriate authority and any other person who was heard in the review and shall cause notice of the decision to be published in the Canada Gazette.

1988, c. 65, s. 42.

Action on Decision of Panel

Marginal note:Action by appropriate authority

77.16 (1) Where a panel makes an order under subsection 77.15(3) or (4) referring a matter back to the appropriate authority for reconsideration, the appropriate authority shall, within the period specified by the panel, take action under this Act not inconsistent with the decision of the panel.

Marginal note:Appropriate authority not required to act twice

(2) Notwithstanding any other provision of this Act, an appropriate authority is not required to act on an order under subsection 77.15(4), unless it requires the authority to take action that is different from that taken by the authority under the order under subsection 77.15(3).

1988, c. 65, s. 42.

Extraordinary Challenge Proceeding

Marginal note:Request for extraordinary challenge proceeding

77.17 (1) Within the period after a panel makes an order under subsection 77.15(3) or (4) prescribed by the rules, the Minister or the United States government may request, in writing to the Canadian Secretary, that an extraordinary challenge proceeding be commenced with respect to the order.

Marginal note:Ground for request

(2) A request for an extraordinary challenge proceeding may be made only on a ground set forth in paragraph 13 of Article 1904 of the Free Trade Agreement.

(3) On receiving a request under this section made by the Minister, the Canadian Secretary shall notify the American Secretary of the request and the day on which it was received by the Canadian Secretary, and on receiving a request under this section made by the United States government, the Canadian Secretary shall notify the Minister of the request and the day on which it was received by the Canadian Secretary.

1988, c. 65, s. 42.

Marginal note:Appointment of extraordinary challenge committee

77.18 On a request under section 77.17 for an extraordinary challenge proceeding, an extraordinary challenge committee shall be appointed for that purpose in accordance with paragraph 1 of Annex 1904.13 to Chapter Nineteen of the Free Trade Agreement and any regulations made in connection therewith.

1988, c. 65, s. 42.

Marginal note:Conduct of extraordinary challenge proceeding

77.19 (1) A committee shall conduct an extraordinary challenge proceeding and make a decision in accordance with Annex 1904.13 to Chapter Nineteen of the Free Trade Agreement and the rules.

Marginal note:Powers of committee

(2) A committee has such powers, rights and privileges as are conferred on it by the regulations.

Marginal note:New panel

(3) Where an order of a panel is set aside by a committee, a new panel shall, in accordance with this Part, be appointed and conduct a review of the definitive decision that was the subject of that order.

Marginal note:Action by panel

(4) Where an order of a panel is referred back to the panel by a committee, the panel shall take action not inconsistent with the decision of the committee.

Marginal note:Decision

(5) A decision of a committee shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the committee, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made by the committee to the Minister, the United States government, the appropriate authority and any other person who was heard in the proceeding and shall cause notice of the decision to be published in the Canada Gazette.

1988, c. 65, s. 42.

Marginal note:Orders and decisions final

77.2 (1) Subject to subsection 77.15(4) and section 77.17, an order or decision of a panel or committee is final and binding and is not subject to appeal.

Marginal note:No review

(2) Subject to subsection 77.15(4) and section 77.17, no order, decision or proceeding of a panel or committee made or carried on under, or purporting to be made or carried on under, this Act shall be

(a) questioned, reviewed, set aside, removed, prohibited or restrained, or

(b) made the subject of any proceedings in, or any process or order of, any court, whether by way of or in the nature of injunction, certiorari, prohibition, quo warranto, declaration or otherwise,

on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the panel or committee to make or carry on or that, in the course of any proceeding, the panel or committee for any reason exceeded or lost jurisdiction.

(2) Every member of a panel and every prescribed person shall sign and comply with a disclosure undertaking, in the prescribed form, respecting the disclosure and use of confidential, personal, business proprietary and other privileged information made available to the member or person in proceedings under this Part.

Marginal note:Immunity

(3) Subject to section 77.26, no action or other proceeding lies or shall be commenced against a member of a panel for or in respect of anything done or omitted to be done, or purported to be done or omitted to be done, under this Part.

Marginal note:Remuneration and expenses of panel members

77.22 Every member of a panel shall be paid such remuneration and is entitled to such travel and living expenses incurred in the performance of the member’s duties under this Part as are fixed by the Canada-United States Trade Commission established pursuant to the Free Trade Agreement.

1988, c. 65, s. 42.

Secretariat

Marginal note:Establishment of Canadian Secretariat

77.23 There is hereby established a secretariat, to be called the Canadian Secretariat, for the purpose of facilitating the implementation of Chapter Nineteen of the Free Trade Agreement and the work of panels and committees.

1988, c. 65, s. 42.

Marginal note:Secretary

77.24 (1) There shall be a Secretary of the Secretariat to be appointed by the Governor in Council, on the recommendation of the Minister, to hold office for a term not exceeding five years.

Marginal note:Salary and expenses

(2) The Canadian Secretary shall be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council.

Marginal note:Absence or incapacity of Secretary

(3) In the event of the absence or incapacity of the Canadian Secretary or if the office of Canadian Secretary is vacant, the Governor in Council may appoint another person, on such terms and conditions as the Governor in Council deems appropriate, to act as Canadian Secretary and a person so acting shall have all the powers, duties and functions of the Canadian Secretary under this Part and be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council.

Marginal note:Superannuation

(4) The provisions of the Public Service Superannuation Act, other than those related to tenure of office, apply to the Canadian Secretary, except that a person appointed as Canadian Secretary from outside the public service may, by notice in writing given to the President of the Treasury Board not more than sixty days after the date of appointment, elect to participate in the Diplomatic Service (Special) Superannuation Act, in which case the provisions of that Act, other than those relating to tenure of office, apply to the Canadian Secretary from the date of appointment and the provisions of the Public Service Superannuation Act do not apply.

Marginal note:Chief executive officer

(5) The Canadian Secretary is the chief executive officer of the Secretariat and has supervision over and direction of the work and staff of the Secretariat.

Marginal note:Staff

77.25 Such officers, clerks and employees as are required for the proper conduct of the work of the Secretariat shall be appointed in accordance with the Public Service Employment Act.

1988, c. 65, s. 42.

Offence

Marginal note:Offence

77.26 (1) Every person commits an offence who contravenes or fails to comply with

(a) a disclosure undertaking under subsection 77.21(2);

(b) the rules respecting the disclosure and use of confidential, personal, business proprietary or other privileged information; or

(c) a protective order covering business proprietary and other privileged information made under the American law giving effect to the Free Trade Agreement.

Marginal note:Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to a fine not exceeding one million dollars; or

(b) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding one hundred thousand dollars.

Marginal note:Consent

(3) No proceedings for an offence under this section shall be instituted without the consent in writing of the Attorney General of Canada.

1988, c. 65, s. 42.

Regulations

Marginal note:Regulations

77.27 The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations

(a) conferring on a panel or committee such powers, rights and privileges as the Governor in Council deems necessary for giving effect to Chapter Nineteen of the Free Trade Agreement and the rules, including powers, rights and privileges of a superior court of record;

(b) authorizing a designated officer, or an officer of a designated class of officers, employed in or occupying a position of responsibility in the service of Her Majesty to perform duties or functions of the Minister under this Part;

(c) for carrying out and giving effect to paragraphs 1 to 4 of Annex 1901.2, and paragraph 1 of Annex 1904.13, to Chapter Nineteen of the Free Trade Agreement; and

(d) generally for carrying out the purposes and provisions of this Part.

Application of Acts

Marginal note:Application

(b) of any other Act of Parliament respecting the imposition of anti-dumping or countervailing duties, or

(c) amending a provision of an Act of Parliament providing for judicial review of a definitive decision or setting forth the grounds for such a review

that comes into force after the coming into force of this section shall be applied in respect of goods of the United States, unless it is expressly declared by an Act of Parliament that the provision applies in respect of goods of the United States.

1988, c. 65, s. 42.

PART IIIGENERAL

Provision of Evidence to President

Marginal note:President may require evidence to be provided

(a) in any proceeding undertaken by the President after notice has been given that the complaint is properly documented but before the initiation of an investigation or in any investigation under this Act respecting the dumping or subsidizing of goods, or

(b) in relation to the sale of

(i) any goods to an importer in Canada, or

(ii) any goods located or in the course of production out of Canada,

that are of the same description as goods to which an order or finding of the Tribunal described in section 3, 5 or 6 applies and that will or may be imported into Canada,

the President believes on reasonable grounds that any person in Canada is able to provide evidence relevant to any proceedings undertaken by the President before the initiation of an investigation, to the investigation or to the making, for the purpose of facilitating the administration or enforcement of this Act, of an estimate of the duty that will or may be payable on the goods when imported into Canada, the President may, by notice in writing, require the person to provide the President, under oath or otherwise, with the evidence referred to in the notice.

Marginal note:Notice to provide evidence

(2) Where, by notice given pursuant to subsection (1), the President requires any person to provide evidence, he shall

(a) include in the notice sufficient information for the person to identify the evidence;

(b) specify in the notice the time within which and the manner and form in which the evidence is to be provided; and

(c) include with the notice a copy or summary of this section and sections 82 to 85.

Marginal note:Evidence or statement to be provided

(3) Where a person is required by notice given pursuant to subsection (1) to provide the President with evidence, the person shall

(a) if it is reasonably practicable for the person to do so, provide the evidence in accordance with the notice;

(b) if it is reasonably practicable for the person to provide a part only of the evidence in accordance with the notice,

(i) so provide that part of the evidence, and

(ii) provide the President with a written statement under oath identifying the remainder of the evidence and specifying the reason why it is not reasonably practicable for the person to provide the remainder of the evidence in accordance with the notice; and

(c) if it is not reasonably practicable for the person to provide the evidence in accordance with the notice, provide the President with a statement under oath so stating and specifying the reason why it is not reasonably practicable to so provide the evidence.

Marginal note:No oral evidence

(4) Nothing in this section shall be construed as authorizing the President to require any person to provide evidence orally.

Marginal note:Extension of time

(5) Where, pursuant to paragraph (2)(b), the President specifies the time within which evidence is to be provided, the President may, either before or after the expiration of that time, extend the time within which the evidence is to be provided.

Marginal note:Designation of evidence as confidential

79. (1) Where a person who provides the President with evidence pursuant to subsection 78(3) wishes some or all of the evidence to be kept confidential, the person shall submit, at the time the evidence is provided, a statement designating as confidential the evidence that he wishes to be kept confidential, together with an explanation of why he designated that evidence as confidential.

Marginal note:Summary or statement to be provided

(2) Where, pursuant to subsection (1), a person submits to the President a statement designating evidence as confidential, together with the explanation referred to in that subsection, the person shall submit to the President, at the same time, a summary of the evidence designated as confidential in sufficient detail to convey a reasonable understanding of the evidence.

Collection of Duty

Marginal note:Recovery of duties from person other than importer

81. (1) Notwithstanding anything in this Act, if any duty payable under this Act in respect of goods has not been paid within thirty days after a demand for payment of the duty has been made under this Act, the President may, by notice in writing, require any person in Canada to whom the goods are sold to pay a sum in respect of the duty not exceeding the amount of the duty payable in respect of the goods sold to that person, which sum is, after the notice has been given, a debt due and payable to Her Majesty by that person and may be recovered at any time by action in any court of competent jurisdiction, together with costs of the action.

(2) Where an amount that is less than the duty payable in respect of goods imported into Canada is recovered from a person pursuant to subsection (1), such recovery is without prejudice to any recourse available to Her Majesty under the Customs Act with respect to the remainder of the duty payable.

Disclosure of Information

Marginal note:Information to be disclosed

83. Where information is provided to the President for the purposes of any proceedings under this Act, every party to the proceedings has, unless the information is information to which subsection 84(1) applies, a right, on request, to examine the information during normal business hours and a right, on payment of the prescribed fee, to be provided with copies of any such information that is in documentary form or that is in any other form in which it may be readily and accurately copied.

Marginal note:Information to be disclosed

83.1 Where information is provided to the President for the purposes of any proceedings under this Act in respect of goods of a NAFTA country, the President shall, on receipt of a request from the government of that NAFTA country, provide that government with copies of any such information that is requested that is in documentary form or that is in any other form in which it may be readily and accurately copied, unless the information is information to which subsection 84(1) applies.

Marginal note:Information not to be disclosed

(a) designates information as confidential pursuant to paragraph 85(1)(a), or

(b) submits to the President, with respect to evidence, in this section referred to as “information”, provided by him pursuant to subsection 78(3), the statement and explanation referred to in subsection 79(1),

and that designation or submission, as the case may be, is not withdrawn by the person, no person employed in the federal public administration who comes into possession of that information while he is so employed shall, either before or after he ceases to be so employed, knowingly disclose that information, or knowingly allow it to be disclosed, to any other person in any manner that is calculated or likely to make it available for the use of any business competitor or rival of any person to whose business or affairs the information relates.

Marginal note:Disclosure

(2) Subsection (1) does not apply in respect of

(a) any summary of information or statement referred to in paragraph 85(1)(b) or any summary referred to in subsection 79(2); or

(b) the disclosure by the President of information for the purposes of proceedings before a panel or the Appellate Body established under the Understanding on Rules and Procedures Governing the Settlement of Disputes set out in Annex 2 to the WTO Agreement.

Marginal note:Disclosure to counsel

(3) Notwithstanding subsection (1), information to which that subsection applies that has been provided to the President in any proceedings under this Act shall, on written request and on payment of the prescribed fee, be disclosed by the President, in the manner and at the time specified by the President, to counsel for any party to those proceedings or to other proceedings under this Act arising out of those proceedings for use, notwithstanding any other Act or law, by that counsel only in those proceedings, subject to any conditions that the President considers reasonably necessary or desirable to ensure that the information will not, without the written consent of the person who submitted it to the President, be disclosed to any person by counsel in any manner that is calculated or likely to make it available to

(a) any party to the proceedings or other proceedings, including a party who is represented by that counsel; or

(b) any business competitor or rival of any person to whose business or affairs the information relates.

Marginal note:Limitation

(3.1) The President may not disclose information under subsection (3) if the President is satisfied that the disclosure might result in material harm to the business or affairs of the person who designated the information as confidential under paragraph 85(1)(a).

Definition of “counsel”

(4) In subsection (3), “counsel”, in relation to a party to proceedings under this Act, includes any person, other than a director, servant or employee of the party, who acts in the proceedings on behalf of the party.

Marginal note:Designation of information as confidential

85. (1) Where a person who provides information to the President for the purposes of proceedings under this Act wishes some or all of the information to be kept confidential, the person shall submit, at the time the information is provided,

(a) a statement designating as confidential the information that he wishes to be kept confidential, together with an explanation of why he designated that information as confidential; and

(b) a non-confidential edited version or non-confidential summary of the information designated as confidential pursuant to paragraph (a) in sufficient detail to convey a reasonable understanding of the substance of the information or a statement

(i) that such a non-confidential edited version or non-confidential summary cannot be made, or

(ii) that such a non-confidential edited version or non-confidential summary would disclose facts that the person has a proper reason for wishing to keep confidential,

together with an explanation that justifies the making of any such statement.

Marginal note:Interpretation

(2) A person who designates information as confidential pursuant to paragraph (1)(a) fails to comply with paragraph (1)(b) where

(a) the person does not provide a non-confidential edited version, a non-confidential summary or a statement referred to in paragraph (1)(b);

(b) the person provides a non-confidential edited version or a non-confidential summary of the information designated as confidential pursuant to paragraph (1)(a), but the President is satisfied that it does not comply with paragraph (1)(b);

(c) the person provides a statement referred to in paragraph (1)(b), but does not provide an explanation that justifies the making of the statement; or

(d) the person provides a statement referred to in paragraph (1)(b), but the President is satisfied that the explanation given as justification for the making of the statement does not justify the making thereof.

Marginal note:Where there has been failure to comply

86. (1) Where a person has designated information as confidential pursuant to paragraph 85(1)(a) and the President considers that the designation is warranted, but the person has failed to comply with paragraph 85(1)(b), the President shall cause the person to be informed of that failure, of the ground on which he has so failed and of the application of subsection 87(3) if the person fails to take, within the time limited therefor by or pursuant to that subsection, such action as it is necessary for him to take in order to comply with paragraph 85(1)(b).

Marginal note:Where President considers designation unwarranted

(2) Where, pursuant to paragraph 85(1)(a), a person has designated information as confidential and the President considers that, because of its nature, extent, availability from other sources or the failure of the person to provide any explanation of why he designated it as confidential, the designation of that information as confidential is unwarranted, the President shall cause the person

(a) to be notified of the fact that the President considers the designation of that information as confidential unwarranted and of the President’s reasons for so considering; and

(b) where the person has failed to comply with paragraph 85(1)(b), to be informed as provided in subsection (1).

Marginal note:Withdrawal of designation or submission of explanation

87. (1) Where a person is notified pursuant to paragraph 86(2)(a) with respect to any information that he has designated as confidential pursuant to paragraph 85(1)(a), the person may, within fifteen days after being so notified,

(a) withdraw the designation, or

(b) submit to the President an explanation or further explanation of why he designated the information as confidential,

and where the person does neither of those things within the fifteen days, that information shall not thereafter be taken into account by the President in the proceedings for the purposes of which it was provided or in any proceedings arising out of those proceedings, unless the President obtains it elsewhere than from that person.

Marginal note:President to reconsider

(2) Where, pursuant to subsection (1), a person submits to the President, within the fifteen days referred to in that subsection, an explanation or further explanation of why the person designated information as confidential, the President shall again consider whether, taking into account that explanation or further explanation, the designation of the information as confidential is warranted and, if the President decides that it is not warranted, shall cause the person to be notified that the information will not thereafter be taken into account by the President in the proceedings for the purposes of which it was provided or in any proceedings arising out of those proceedings, in which case the information shall not thereafter be taken into account by the President in any such proceedings, unless he obtains it elsewhere than from that person.

Marginal note:Where failure to comply not rectified

(3) Subject to subsection (4), where a person who has been informed pursuant to section 86 that he has failed to comply with paragraph 85(1)(b) with respect to any information does not, within fifteen days after being so informed or within such longer time not exceeding thirty days after being so informed as the President, either before or after the expiration of the fifteen days, in his discretion allows, take such action as it is necessary for the person to take in order to comply with paragraph 85(1)(b), the President shall cause the person to be notified that the information will not thereafter be taken into account by the President in the proceedings for the purposes of which it was provided or in any proceedings arising out of those proceedings, in which case the information shall not thereafter be taken into account by the President in any such proceedings, unless he obtains it elsewhere than from that person.

Marginal note:Exception

(4) Subsection (3) does not apply in respect of any information that the President is prohibited by subsection (1) or (2) from taking into account in the proceedings for the purposes of which it was provided.

Marginal note:Application of sections 86 and 87

Marginal note:Prohibition on disclosure of information

88.1 If the Tribunal indicates to the President in writing that subsection 46(1) of the Canadian International Trade Tribunal Act applies to information provided to the President under paragraph 76.03(6)(b), no person employed in the federal public administration who comes into possession of that information while they are so employed shall, either before or after they cease to be so employed, knowingly disclose it, or knowingly allow it to be disclosed, to any other person in any manner that is calculated or likely to make it available for the use of any business competitor or rival of any person to whose business or affairs the information relates.

Ruling on Who is Importer

Marginal note:Request for ruling on who is importer in Canada

89. (1) Where a question arises or is raised as to which of two or more persons is, for the purposes of this Act, the importer in Canada of goods imported or to be imported into Canada on which duty is payable or has been paid or will be payable if the goods are imported, the President may, and at the request of any person interested in the importation of the goods shall, request the Tribunal for a ruling on that question, unless, in the case only of goods that have been imported into Canada,

(a) a determination has been made under section 55 or 56 with respect to the goods; and

(b) more than ninety days have elapsed since the determination referred to in paragraph (a) was made.

Marginal note:Idem

(2) Where the President makes a request under subsection (1) for a ruling on the question referred to therein, the President shall

(a) state in the request which of the two or more persons the President believes is the importer in Canada of the goods;

(b) if any of the goods is of the same description as the goods specified in a preliminary determination made in an investigation that was initiated pursuant to section 31 and is still continuing, so state in the request;

(c) provide the Tribunal with such information as the President considers will be useful to it in considering the question and with such other information as the Tribunal may request; and

(d) give notice of his request to such persons as the rules of the Tribunal require or as the Tribunal may require.

Marginal note:Investigation deemed to continue

(3) Where, in any investigation, the President makes a final determination of dumping or subsidizing under subsection 41(1) in respect of any goods, the investigation shall, for the purpose of paragraph (2)(b), be deemed to continue until such time as the Tribunal makes an order or finding in respect of the goods.

Marginal note:Tribunal’s ruling

90. Where a request is made to the Tribunal under subsection 89(1) for a ruling on the question referred to therein, the Tribunal

(a) shall arrive at its ruling on the question by determining which of the two or more persons is the importer in Canada of the goods;

(b) subject to paragraph (c), shall give its ruling on the question forthwith after receiving the request therefor; and

(c) shall not, if a statement pursuant to paragraph 89(2)(b) is made in the request, give its ruling on the question until after it makes an order or finding in the inquiry commenced as a consequence of the receipt by the Secretary of notice of the preliminary determination referred to in that paragraph, unless, after the request is made to the Tribunal, the Secretary receives notice pursuant to subsection 41(4) that the investigation has been terminated pursuant to subsection 41(1) in respect of the goods specified in the preliminary determination, in which case the Tribunal shall give its ruling on the question forthwith after the Secretary receives that notice.

Marginal note:Rules

(a) a request is made to the Tribunal pursuant to subsection 89(1) for a ruling on the question referred to therein,

(b) a statement pursuant to paragraph 89(2)(b) is made in the request, and

(c) the Tribunal’s ruling on the question is that the importer in Canada of the goods is a person other than the person specified as such by the President pursuant to paragraph 89(2)(a),

the following rules apply:

(d) as soon as possible after the Tribunal gives its ruling on the question, the President shall

(i) reconsider any final determination of dumping or subsidizing made pursuant to subsection 41(1) with respect to the goods specified in the preliminary determination and shall confirm the final determination, rescind it or make amendments to it, as is appropriate in the circumstances, and

(ii) cause notice of the action taken by the President pursuant to subparagraph (i) to be given to prescribed persons and governments, published in the Canada Gazette and filed with the Secretary in writing;

(e) where the President rescinds a final determination pursuant to paragraph (d), section 41 shall again apply in respect of the goods to which the final determination applied as if that section had not previously applied in respect of those goods, except that the action that the President is required by that section to take shall, notwithstanding anything therein, be taken by the President within sixty days after the Tribunal gives its ruling on the question;

(f) where the President has caused the investigation referred to in paragraph 89(2)(b) to be terminated pursuant to subsection 41(1) with respect to the goods specified in the preliminary determination, the Tribunal shall be deemed to have directed the President, by notice in writing pursuant to section 46, to cause an investigation to be initiated respecting the dumping or subsidizing of those goods and the President shall, pursuant to subsection 31(2), forthwith cause such an investigation to be commenced; and

(g) the Tribunal may, on its own initiative or at the request of the President or any person interested but subject to subsection (2), reconsider, under the authority of this paragraph, any order or finding made by it in the inquiry referred to in paragraph 90(c) and, in so reconsidering, may re-hear any matter before deciding it.

Marginal note:Limitation on reconsideration of order or finding

(2) The Tribunal shall not commence reconsideration of an order or finding under the authority of paragraph (1)(g)

(a) later than ninety days after the making of the ruling on the question referred to in paragraph (1)(a); or

(b) at the request of any person unless that person satisfies the Tribunal that reconsideration of the order or finding is warranted.

Marginal note:Completion of reconsideration

(3) Where the Tribunal reconsiders an order or finding under the authority of paragraph (1)(g),

(a) the Tribunal shall complete the reconsideration forthwith and, in any event, not later than ninety days after the day on which it decides to commence it and, on completion thereof, shall confirm the order or finding or rescind it and make such other order or finding with respect to the goods to which the order or finding under reconsideration applies as the nature of the matter may require, and, where it makes another order or finding, shall declare to what goods, including, where applicable, from what supplier and from what country of export, the order or finding applies;

(b) the Secretary shall forward by registered mail to the President, the importer, the exporter and such other persons and governments as may be specified by the rules of the Tribunal

(i) forthwith after the reconsideration is completed, notice of the action taken pursuant to paragraph (a) with respect to the order or finding and, where another order or finding has been made pursuant to that paragraph, a copy of that other order or finding, and

(ii) not later than fifteen days after the completion of the reconsideration, a copy of the reasons for the action taken thereon; and

(c) where the Tribunal makes another order or finding pursuant to paragraph (a), the Secretary shall cause notice of the order or finding to be published in the Canada Gazette.

Marginal note:Separate order or finding

(4) Where a reconsideration under the authority of paragraph (1)(g) involves goods of the United States as well as goods of other countries and the Tribunal makes another order or finding under paragraph (3)(a), the Tribunal shall make a separate order or finding under that paragraph with respect to the goods of the United States.

Marginal note:Determination pursuant to section 55

92. A determination made pursuant to section 55 in respect of any imported goods on the basis that the importer of the goods was a person who is subsequently ruled by the Tribunal not to have been the importer thereof shall be deemed not to have been made and, for the purpose of that section, the date of the order or finding of the Tribunal with respect to goods that appear to be of the same description as the imported goods shall be deemed to be

(a) where, following its ruling, the Tribunal reconsiders the order or finding pursuant to paragraph 91(1)(g) and confirms it, the date on which the Tribunal confirms the order or finding;

(b) where, following its ruling, the Tribunal reconsiders the order or finding pursuant to paragraph 91(1)(g) and rescinds it and makes another order or finding with respect to goods of that description, the date of the other order or finding; and

(c) in any other case, the date of the Tribunal’s ruling.

1984, c. 25, s. 92.

Marginal note:Determination pursuant to section 56, 57 or 59

93. A determination or re-determination made pursuant to section 56, 57 or 59 in respect of any goods on the basis that the importer of the goods was a person who is subsequently ruled by the Tribunal not to have been the importer thereof shall be deemed not to have been made and the goods shall, for the purposes of section 56, be deemed to be accounted for on the earlier of

(a) the day that is sixty days after the day on which the Tribunal made the ruling; and

(b) the day on which a new determination is made pursuant to section 56 in respect of the goods.

R.S., 1985, c. S-15, s. 93;

R.S., 1985, c. 1 (2nd Supp.), s. 211.

Marginal note:Ruling binding

94. A ruling given by the Tribunal on the question of who is the importer in Canada of any goods imported or to be imported into Canada is binding on the President, and on every person employed by the Canada Border Services Agency in the administration or enforcement of this Act, with respect to the particular goods in relation to which the ruling is given, unless the Tribunal is fraudulently misled or, in the case only of goods to be imported into Canada, material facts that are not available to the President at the time the Tribunal gives its ruling come to the President’s attention after it is given.

Marginal note:President to provide name of importer

95. Where any person interested in the importation of goods into Canada requests the President to provide the person with the name of the importer of the goods, the President shall, except in prescribed circumstances, forthwith provide the person with the name of the importer.

Gathering of Information

Marginal note:President may gather information in advance

96. In order to facilitate the administration and enforcement of this Act, where the President believes that goods sold to an importer in Canada or goods located or in the course of production out of Canada are or may be of the same description as goods to which an order or finding of the Tribunal described in section 3, 5 or 6 applies and that they will or may be imported into Canada, the President may, for the purpose of estimating the margin of dumping of or the amount of subsidy on the goods before they are imported into Canada, seek from persons in or out of Canada, in such manner and form as he considers appropriate in the circumstances, such information as he believes will be useful for that purpose.

Application for Review

Marginal note:Application for judicial review

96.1 (1) Subject to section 77.012 or 77.12, an application may be made to the Federal Court of Appeal to review and set aside

(a) a final determination of the President under paragraph 41(1)(a);

(b) a decision of the President under paragraph 41(1)(b) to cause an investigation to be terminated;

(c) a decision of the President under subsection 53(1) to renew or not to renew an undertaking;

(c.1) an order or finding of the Tribunal under subsection 43(1);

(d) an order of the Tribunal under subsection 76.01(4) or 76.03(5);

(d.1) a determination of the President under paragraph 76.03(7)(a);

(e) an order or finding of the Tribunal under subsection 76.02(4) respecting a review under subsection 76.02(1);

(f) an order of the Tribunal under subsection 76.01(5) or 76.03(12); or

(g) an order or finding of the Tribunal under subsection 91(3).

Marginal note:Grounds of application

(2) An application may be made under this section on the ground that the President or the Tribunal, as the case may be,

(a) acted without jurisdiction, acted beyond the jurisdiction of the President or the Tribunal or refused to exercise that jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that the President or the Tribunal was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based a decision or order on an erroneous finding of fact that the President or the Tribunal made in a perverse or capricious manner or without regard for the material before the President or the Tribunal;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

Marginal note:Filing of application

(3) Subject to subsection 77.012(2), an application may be made under this section by any person directly affected by the determination, decision, order or finding by filing a notice of the application in the Federal Court of Appeal within thirty days after the time the determination, decision, order or finding was first communicated to that person by the President or the Tribunal, or within such further time as the Federal Court of Appeal or a judge thereof may, before or after the expiration of those thirty days, fix or allow.

Marginal note:Trial Division deprived of jurisdiction

(4) Where the Federal Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a determination, decision, order or finding, the Trial Division has no jurisdiction to entertain any proceeding in respect of that determination, decision, order or finding.

Marginal note:Hearing in summary way

(5) An application under this section shall be heard and determined without delay and in a summary way in accordance with the rules made in respect of applications for judicial review pursuant to sections 18.1 and 28 of the Federal Courts Act.

Marginal note:Disposition

(6) On an application under this section, the Federal Court of Appeal may dismiss the application, set aside the final determination, decision, order or finding, or set aside the final determination, decision, order or finding and refer the matter back to the President or the Tribunal, as the case may be, for determination in accordance with such directions as it considers appropriate.

Marginal note:Request for review of final determination

96.21 (1) The Minister for International Trade may, in the manner provided for by the law of a NAFTA country giving effect to the North American Free Trade Agreement, request that a final determination be reviewed by a panel established under that law.

Marginal note:Idem

(2) Any person who, but for the law of a NAFTA country giving effect to the North American Free Trade Agreement, would be entitled under the law of that NAFTA country to commence domestic proceedings for judicial review of a final determination may file with the Canadian Secretary a request that the final determination be reviewed by a panel established under that law.

Marginal note:Deeming

(3) A request under subsection (2) shall be deemed to be a request by the Minister for binational review within the meaning of paragraph 4 of Article 1904 of the North American Free Trade Agreement.

Marginal note:Limitation period

(4) A request under subsection (1) or (2) may only be made within thirty days after the day on which notice of the final determination is published in the official publication of the NAFTA country, or, in the case of a final determination of which notice is not so published, within thirty days after the day on which notice of the final determination is received by the Minister.

Definition of “final determination”

(5) In this section, “final determination” means a final determination as defined in Annex 1911 of the North American Free Trade Agreement.

Marginal note:Suspension of s. 96.3

(6) The operation of section 96.3 is suspended during the period in which this section is in force.

1993, c. 44, s. 222;

1999, c. 12, s. 48(F).

Marginal note:Request for review of final determination

96.3 (1) The Minister for International Trade may, in the manner provided for by the American law giving effect to the Free Trade Agreement, request that a final determination be reviewed by a panel established under that law.

Marginal note:Idem

(2) On a request made to the Canadian Secretary by any person who, but for the American law giving effect to the Free Trade Agreement, would be entitled under American law to commence domestic proceedings for judicial review of a final determination, the Minister for International Trade shall, in the manner provided for by the American law giving effect to the Free Trade Agreement, request that the final determination be reviewed by a panel established under that law.

Marginal note:Limitation period

(3) No request shall be made to the Canadian Secretary under subsection (2) more than twenty-five days after the day on which notice of the final determination is published in the Federal Register or, in the case of a final determination of which notice is not so published, the day on which notice of the final determination is received by the Minister.

Definition of “final determination”

(4) In this section, “final determination” means a final determination as defined in subparagraph (b) of the definition of that term in Article 1911 of the Free Trade Agreement.

REGULATIONS

Marginal note:Regulations

97. (1) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations

(a) prescribing anything that by this Act is to be or may be prescribed by regulation;

(a.1) respecting the factors that may be considered in determining

(i) the existence of injury, retardation or threat of injury, and

(ii) whether the injury, retardation or threat of injury has been caused by the dumping or subsidizing of any goods or by any other reason;

(b) specifying the circumstances and manner in which two or more properly documented complaints, investigations or inquiries may be joined and carried on as one and the persons to whom and the manner in which notice of the joining shall be given;

(c) [Repealed, 1994, c. 47, s. 184]

(d) defining the expression “duty or internal tax” for the purpose of the definition “subsidy” in subsection 2(1);

(e) defining the expressions “cost of production”, “a reasonable amount for administrative, selling and all other costs” and “a reasonable amount for profits” for the purpose of paragraph 19(b) or subparagraph 20(1)(c)(ii);

(e.1) prescribing the manner of calculating the cost of production of goods and the administrative, selling and all other costs with respect to goods;

(f) defining the expression “an amount for profit” for the purpose of subparagraph 25(1)(c)(ii) or (d)(i);

(f.1) defining the expression “start-up period of production” for the purposes of section 23.1, including prescribing the factors to consider in determining the duration of such a period;

(f.2) prescribing, for the purposes of subsection 30.3(3), the manner for determining a margin of dumping, including prescribing the manner for determining the maximum margin of dumping that can be determined;

(g) defining the expression “person interested” for the purpose of subsection 45(6) or section 89 or 95;

(g.1) deeming a government in Canada or the United States to be a person who is entitled to make a request to the Canadian Secretary under subsection 77.11(2);

(g.11) deeming a government in Canada or in a NAFTA country to be a person who is entitled to make a request to the Canadian Secretary under subsection 77.011(2);

(g.2) defining the expression “goods of the United States” for the purpose of this Act;

(g.21) defining the expression “goods of a NAFTA country” for the purpose of this Act;

(g.22) determining, in respect of each NAFTA country, which publication shall be deemed to be the official publication of that country for the purpose of this Act;

(g.23) determining the meaning of the expression “goods of Chile” for the purposes of this Act;

(h) prescribing the procedure to be followed in an investigation ordered by the Governor in Council under subsection 7(1);

(i) providing for the selection of an interest rate, from among or by reference to interest rates prevailing in or out of Canada at the time of the sale referred to in subsection 21(1), by reference to which the determination referred to in paragraph 21(1)(a) shall be made in the circumstances described in clause 21(1)(a)(ii)(B);

(j) providing for the selection of an interest rate, from among or by reference to interest rates prevailing in or out of Canada at the time of the sale referred to in subsection 27(1), by reference to which the determination referred to in paragraph 27(1)(a) shall be made in the circumstances described in clause 27(1)(a)(ii)(B);

(k) providing for the determination of or specifying the date as of which the equivalent dollar value of any amount that is expressed in the currency of a country other than Canada and that is used or taken into account for any purpose in the administration or enforcement of this Act shall be ascertained, determined or calculated;

(k.1) providing for the method of determining the rate of exchange for the purpose of calculating the export price for export sales involving the sale of foreign currency on forward markets;

(k.2) providing for the manner of making adjustments to export prices and normal values in situations of fluctuation or sustained movement in the rate of exchange;

(k.3) prescribing the period after which the President may refuse to consider representations referred to in subsection 49(5);

(k.4) prescribing the factors that the President may consider in making a determination under paragraph 76.03(7)(a);

(k.5) prescribing the factors that the Tribunal may consider in making a determination under subsection 76.03(10);

(k.6) providing for the manner of attributing principal and interest to imported goods when those amounts include a portion related to charges not directly associated with the value of the goods; and

(l) generally, for carrying out the purposes and provisions of this Act.

Marginal note:Regulations prescribing rate of interest

(2) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations prescribing a rate of interest or rules for determining a rate of interest for the purposes of this Act.

ORDERS

Marginal note:Orders suspending application

98. (1) The Governor in Council may, for the purpose of ensuring that this Act complies with the Subsidies Agreement, by order, modify or suspend the application of any provision, in whole or in part, of this Act with respect to any country.

Marginal note:Period of order

(2) Unless revoked, an order made under subsection (1) has effect for the period specified in the order.